FEDERAL LABOR RELATIONS AUTHORITY 

 OFFICE OF THE GENERAL COUNSEL

 

 REPRESENTATION

CASE LAW GUIDE

 Foreword

The Representation Case Law Guide (RCL) provides information on a variety of 

substantive topics in representation case law under the Federal Service LaborManagement Relations Statute (the Statute). The RCL has been prepared by the 

Federal Labor Relations Authority (FLRA), Office of the General Counsel (OGC) 

pursuant to section 7104(f) of the Statute. The RCL is intended to provide a 

resource tool for Regional Office employees when processing representation 

petitions and unfair labor practice cases that raise representation issues. For more 

information on processing representation petitions, see the Representation 

Proceedings Case Handling Manual. For more information on preparing for and 

conducting hearings representation cases, see the Hearing Officer’s Guide. 

 

The RCL is published in a handbook style format to make it user friendly. The RCL 

will be updated annually. Since party understanding of the representation process 

and regulatory requirements is critical to the timely and effective processing of 

representation petitions by the Regional Offices, the RCL is available to all parties 

and individuals who are involved in filing and processing representation petitions. 

The RCL may be accessed from the FLRA web site, www.FLRA.gov, and is 

available for purchase from the Government Printing Office. 

The RCL provides guidance for the FLRA, OGC staff when processing 

representation petitions filed under the Statute. The RCL is not intended to be a 

condensed version of all substantive law, nor it is intended to be a substitute for 

knowledge of the law. The RCL is not a ruling or directive, nor is it binding upon the 

FLRA General Counsel or the FLRA. Although the Regional Office staff refers to 

the RCL when processing cases, the RCL does not encompass all situations that 

may be encountered in processing representation petitions. Thus, responsible, 

professional judgment and experience are required in applying and utilizing these 

guidelines. 

August 2000 
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OTHER OFFICE OF THE GENERAL COUNSEL 

 RESOURCE MANUALS 

The Representation Case Handling Manual (REP CHM) provides procedural and 

operational guidance t the General Counsel ‘s staff when processing representation 

petitions filed pursuant to Party 2422 of the FLRA’s regulations. Part One 

discusses processing petitions from providing substantive issues to investigating 

and resolving the underlying representation matters, and to issuing a certification or 

taking other final action. Part One tracks, for the most part, the subject matter 

format in the representation regulations. Part Two consists of resources that the 

General Counsel’s staff uses when processing petitions, including a Cross 

Reference Table, Flow Charts, Appendices, FLRA Forms and Documents, and 

sample Figures. 

The Hearing Officer’s Guide (HOG) describes techniques for conducting hearings 

in FLRA representation proceedings. The first part provides instructions and 

guidance on preparing for and conducting hearings. It includes a sample script and 

discusses specific procedural issues, some commonplace, others novel, that arise 

during hearings. The second part discusses a variety of evidentiary representation 

issues and employee categories. Each topic is defined and includes an outline of 

issues and questions to assist the Hearing Officer and the parties to develop a 

complete record. 

The Unfair Labor Practice Case Handling Manual (ULPCHM) provides 

procedural and operational guidance to the General Counsel’s staff when 

processing unfair labor practice charges filed pursuant to Subpart A Party 2423 of 

the FLRA’s regulations. It is divided into 5 Parts that address various topics/issues 

that arise during distinct phases of the ULP process-from pre-charge through pre 

and post investigation. It also codifies the OGC’s policies with respect to: 

Facilitation, Intervention, Training, and Education; Quality of Investigators; Scope of 

Investigations; Injunctions; Prosecutorial Discretion; Settlements; and Appeals. As 

appropriate, the ULPCHM references relevant case law and provides for uniformity 

and best practices; criteria and principles governing Regional discretion and 

judgment; and model and sample forms and letters. 

The Litigation Manual (LM) provides comprehensive guidance to regional Trial 

Attorneys in prosecuting ULP cases. The Manual covers each aspect of the trial 

process-from the issuance of a complaint and notice of hearing to the Authority’s 

decision and order. Where appropriate, it refers to OGC Policy and relevant case 

law, and contains many examples of litigation techniques, both in the body of the 

Manual (Binder I) which concerns substantive litigation guidelines, and in the 

Attachments section of the Manual (Binder II) which contains a compilation of forms, 
Office of the General Counsel 

Representation Case Law Guide October 2000 

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policies, OGC Guidances, or models relating to the subject matter covered in Binder 

I. 
4

TABLE OF CONTENTS

Page numbers reflect the chapter and the page within the chapter (Chapter)-(Page)

1 Appropriate unit determinations 1-1 

A. Standard 1-1 

B. An Appropriate Unit 1-2 

C. Overview 1-2 

D. Community of Interest 1-3 

E. Effective Dealings and Efficiency of Operations 1-5 

F. Impact of the Concept of Fragmentation on Unit 

Determinations 1-7 

G. Relevant Information 1-8 

2 Scope of unit 2-1 

A. Size and Functional Grouping 2-1 

B. Residual Units 2-3 

C. Add-ons to Existing Units 2-3 

D. Expanding and Contracting Units 2-3 

3 Effect of changes in the character and scope of a unit due to a 

reorganization or realignment in agency operations 3-1 

A. Purpose and Standards for Resolving Issues Arising from 

Reorganizations. 3-1 

B. Successorship. 3-11 

C. Accretion 3-16 

D. Competing Claims of Successorship and Accretion. 3-21 

E. Consolidated Units 3-24 

F. Unresolved Issues 3-25 

4 Issues related to the majority status of the currently recognized or certified 

labor organization and/or defunctness 4-1 

A. Timeliness considerations 4-2 

B. Good faith doubt as to union’s continued majority status

 4-2 

C. Petition to amend a certification 4-3 

D. Defunctness 4-3 

5 (Reserved) 5-2 

6 Dues allotment 6-1 

7 Changes in the name of the certified or recognized exclusive 
Office of the General Counsel 

Representation Case Law Guide October 2000 

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representative 7-1 

A. Technical or nominal changes 7-1 

B. Montrose: changes in affiliation or mergers of labor 

organizations 7-2 

C. Impact of Trusteeships on Reaffiliation Petitions 7-5 

D. Unresolved Issues 7-11 

8 Schism 8-1 

9 Severance 9-1 

10 Status of a labor organization 10-1 

A. Compliance with section 7103(a)(4) of the Statute 10-1 

B. Claims made pursuant to section 7111(f)(1) of the Statute

 10-3 

11 (Reserved) 11-1 

12 Timeliness of election petitions 12-1 

A. Election and Certification Bars 12-1 

B. Contract Bars 12-3 

D. Effect of Dismissal, Withdrawal or Disclaimer on Subsequent 

Petitions 12-12 

E. The effect of a contract on other timeliness issues that may 

arise in election cases. 12-13 

13 Unit consolidation 13-1 

A. Consolidation of Units under Executive Order 11491, as amended

 13-1 

B. Consolidation Provisions under the Statute 13-2 

C. Other references 13-7 

14 Units including supervisors 14-1 

15 General considerations 15-1 

16 Employee within the meaning of the Statute 16-1 

17 Internal audit / investigation function 17-1 

18 Administering a labor relations statute 18-1 

19 Confidential employee 19-1 
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20 Employees engaged in personnel work 20-1 

21 General attorneys 21-1 

22 Management official 22-1 

23 Professional employee 23-1 

24 Schedule C positions 24-1 

25 Security work 25-1 

26 Supervisors 26-1 

27 Firefighters and nurses 27-1 

28 Temporary employees 28-1 

TABLE OF AUTHORITIES T/A-1 
Office of the General Counsel 

Representation Case Law Guide October 2000 

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Office of the General Counsel 

Representation Case Law Guide October 2000 

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SUBSTANTIVE ISSUES 

RCL 1 through RCL 14 

1 Appropriate unit determinations 

Appropriate unit issues arise in almost every representation case, including 

those involving elections, amendments and clarifications, dues allotment, 

consolidation and any other matter related to representation. Any case 

that concerns a question of representation requires an appropriate unit 

determination prior to proceeding to other issues. Section 7112(a) of the 

Statute sets out the criteria for determining whether a unit is an appropriate 

unit for exclusive recognition: 

 The Authority shall determine the 

appropriateness of any unit. The Authority shall 

determine in each case whether, in order to ensure 

employees the fullest freedom in exercising the rights 

guaranteed under [the Statute], the appropriate unit 

should be established on an agency, plant, installation, 

functional or other basis and shall determine any unit to 

be an appropriate unit only if the determination will 

ensure a clear and identifiable community of interest 

among the employees in the unit and will promote 

effective dealings with and efficiency of the 

operations of the agency involved. 

 

A. Standard : The Authority will not find any unit to be appropriate for 

exclusive recognition unless the unit meets all three of the criteria set out 

in section 7112(a). In order for a unit to be found appropriate the evidence 

must show that: 

a) the employees in the unit share a clear and identifiable 

community of interest; 

 b) the unit promotes effective dealings with the agency; and

 c) the unit promotes efficiency of the operations of the agency. 

See United States Department of the Navy, Fleet and Industrial Supply 

Center, Norfolk, Virginia, (FISC, Norfolk), 52 FLRA 950 (1997) citing 

Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 46 

FLRA 502 (1992).
2

B. An Appropriate Unit : Parties often succumb to the fallacy that there is a 

"most appropriate" unit. There is nothing in the Statute which requires a 

unit proposed for exclusive recognition to be the only appropriate unit or 

the most appropriate unit. The proposed unit meets the requirements of 

the Statute if it is an appropriate unit. See American Federation of 

Government Employees, Local 2004, 47 FLRA 969, 973 (1993) and FISC, 

Norfolk, 52 FLRA at 959, n.5. The Statute has no preference for any 

particular size or configuration of units. (For background information on 

the history of Federal sector bargaining units, see the Study Committee 

Report which led to the issuance of Executive Order 11491 in 1969, and as 

amended in 1975.) 

C. Overview :

< In making determinations under section 7112(a), the Authority examines 

the factors presented on a case-by-case basis. See U.S. Department of 

the Air Force, Air Force Materiel Command, Wright-Patterson Air Force 

Base (Wright-Patterson AFB), 47 FLRA 602 (1993). 

< In order to be included in a separate appropriate unit, the evidence must 

demonstrate that the employees at issue have significant employment 

concerns or personnel issues that are different or unique from those of 

other employees in the gaining organization. The evidence must also 

demonstrate that the disputed employees have not been so integrated, 

either physically or functionally, with other organizational components that 

the establishment of a separate unit would cause undue unit fragmentation 

resulting in operational inefficiency and confusion in dealings between 

labor and management. FISC, Norfolk, 52 FLRA at 960. 

< A unit may be appropriate despite its small size or limited scope. The 

Authority may conclude that a small unit is appropriate where the 

employees are physically and operationally isolated and, thus, share a 

clear and identifiable community of interest separate and apart from other 

agency employees. Defense Logistics Agency, Defense Contract 

Management Command, Defense Contract Management District, North 

Central, Defense Plant Representative Office-Thiokol, Brigham City, Utah

(DPRO-Thiokol), 41 FLRA 316 (1991). (Authority found that disputed

employees constituted a separate appropriate unit where: employees had 

specific local concerns that might result in grievances or bargaining issues 

unique to the facility; the facility commander had authority to address such 

grievances and bargaining matters; and the facility commander had 

responsibility for its day-to-day operations). See also U.S. Department of 
Office of the General Counsel 

Representation Case Law Guide October 2000 

Defense, Dependents Schools and Overseas Education Association, NEA,

48 FLRA 1076 (1993) and General Services Administration, National 

Capital Region, 5 FLRA 285 (1981). 

< Decisions regarding unit determinations are required to reflect the 

conditions of employment that exist at the time of the hearing rather 

than what may exist at the time in the future unless there are 

definite and imminent changes planned by the agency. DPROThiokol, 41 FLRA at 327. 

< In applying the criteria of section 7112(a), the Authority may find 

that a small unit is not appropriate for exclusive recognition. For 

example, in Department of Transportation, Federal Aviation 

Administration, New England Region (FAA), 20 FLRA 224 (1985), 

the Authority found that a proposed regional unit was not 

appropriate because the agency’s overriding mission of air safety 

clearly demonstrated a community of interest equally shared by all 

air traffic control specialists nationwide. 

< There may be more than one unit configuration within an agency 

which would meet the statutory test set out in section 7112(a). In 

some instances, a self-determination election may be warranted, in 

which the employees vote on the unit, as well as exclusive 

representation. See Department of Defense Dependents Schools, 

6 FLRA 297 (1981) and Department of Defense, Department of the 

Army, 193rd Infantry Brigade Panama et al, 17 FLRA 471 (1981). 

D. Community of Interest : 

Community of interest involves a commonality or sharing of 

interests between the employees in a unit. Its fundamental 

premise is to ensure that it is possible for the employees to deal 

collectively with management as a group. FISC, Norfolk, 52 FLRA 

at 960 citing Department of Transportation, Federal Aviation 

Administration, Southwest Region, Tulsa Airway Facilities Sector

(Tulsa AFS), 3 FLRC 235, 237 (1975), citing a task force report to 

President Kennedy, A Policy for Employee-Management 

Cooperation in the Federal Sector, November 30, 1961. Many 

different considerations may enter into a finding of community of 
4

interest. 

< The Authority has not specified the individual factors or the number 

of such factors necessary to establish that a clear and identifiable 

community of interest exists. Rather, the Authority examines the 

totality of the circumstances on a case-by-case basis. See 

Department of Health and Human Services, Region II, New York, 

New York, et al, (DHHS), 43 FLRA 1245 (1992); U.S. Department 

of Justice, Executive Office for Immigration Review, Office of the 

Chief Immigration Judge, Chicago, Illinois (OCIJ Chicago), 48 

FLRA 620 (1993). 

< In examining community of interest issues, the Authority looks at 

whether the employees in the proposed unit: 

• are part of the same organizational component of 

the agency; 

• support the same mission and are subject to the 

same chain of command; 

• have similar or related duties, job titles and work 

assignments; 

• are subject to the same general working 

conditions; and 

• are governed by the same personnel and labor 

relations policies that are administered by the same 

personnel office. FISC, Norfolk, 52 FLRA at 961. 

In addition, such factors as: 

• geographic proximity; 

• unique conditions of employment; 

• distinct local concerns; 

• degree of interchange between other 

organizational components; and 

• functional or operational separation 

may bear upon whether employees in the unit share a community 

of interest. See U.S. Department of the Air Force, Air Force 

Material Command, Wright-Patterson Air Force Base (AFMC), 
Office of the General Counsel 

Representation Case Law Guide October 2000 

Ohio, 47 FLRA 602 (1993). 

< In addition to examining where the proposed unit fits within the 

agency's operations, the Authority also determines the level at 

which various types of management authority is exercised in 

assessing whether employees share a clear and identifiable 

community of interest. See OCIJ Chicago, 48 FLRA 620 

(employees of a field office shared community of interest where 

authority for day-to-day operations in almost all matters was at the 

field office level and agency field offices were geographically 

separate and served distinct geographic areas) and FAA, 20 FLRA 

224 (1985) (employees in a proposed regional unit did not share 

identifiable community of interest separate and apart from 

employees nationwide where agency had centralized control of 

operations and uniform establishment and application of work 

requirements and personnel policies on a national basis). 

E. Effective Dealings and Efficiency of Operations : 

Effective dealings and efficiency of operations factors are 

considered and decided as separate factors in any case which 

raises appropriate unit issues. The Authority requires that each of 

the appropriate unit criteria be given equal weight in order to foster 

the goal of a more effective and efficient government. Moreover, 

as first clarified by the Federal Labor Relations Council (FLRC), the 

Authority must affirmatively determine that any proposed unit of 

exclusive recognition satisfies each of the three criteria before that 

unit can properly found to be appropriate. Department of 

Transportation, Federal Aviation Administration, Southwest Region, 

Tulsa Airway Facilities Sector (Tulsa AFS), 3 FLRC 235, (1975) 

and FISC, Norfolk, 52 FLRA at 961, n. 6. 

These factors, therefore, are not dependent on the community of 

interest criteria, but often assess the same evidence on the record 

from a different perspective(s). See Department of the Navy, Naval 

Computer and Telecommunications Area, Master Station-Atlantic, 

Base Level Communications Department, Regional Operations 

Division, Norfolk, Virginia, Base Communications Office -

Mechanicsburg, 56 FLRA 228 (2000) (the Authority found that the 
6

Regional Director did not separately evaluate and make explicit 

findings with respect to each of the criteria). 

 

Application of these two factors requires consideration of the 

evidence in light of both management's and employee’s interests. 

For instance, a finding that a proposed unit is appropriate also 

determines the extent of unit fragmentation within the Agency and 

establishes the level of recognition (the level at which bargaining 

must take place). See CHM 28.14.2. Evidence on these issues is 

frequently obtained through testimony related to effective dealings 

and efficiency of operations. Until recently, guidance on applying 

the second and third criteria for finding a unit appropriate was 

found primarily in Executive Order cases. The guidance in those 

cases was adopted by the Authority in FISC, Norfolk, 52 FLRA 950. 

Like community of interest issues, the Authority has not specified 

the precise factors or number of factors to consider in determining 

effective dealings/efficiency of operations issues.

Effective Dealings

Effective dealings pertains to the relationship between 

management and the exclusive representative selected by unit 

employees in an appropriate bargaining unit. In assessing this 

requirement the Authority examines such factors as: 

< the efficient use of resources which might be derived from inclusion 

in other units; 

< the past collective bargaining experience of the parties; 

< the locus and scope of authority of the responsible personnel office 

administering personnel policies covering employees in the 

proposed unit; 

< the limitations, if any, on the negotiation of matters of critical 

concern to employees in the proposed unit; and 

< the level at which labor relations policy is set in the agency. See 

Department of Transportation, Washington, D.C. (DOT), 5 FLRA 
Office of the General Counsel 

Representation Case Law Guide October 2000 

646 (1981); Defense Supply Agency, Defense Contract 

Administration Services Region (DCASR), San Francisco, 

California, et al., 4 FLRC 669 (1976); Department of State, 

Passport Office, Chicago Passport Agency, Chicago, Illinois

(Chicago Passport Agency), 8 A/SLMR 946 (1978). 

Efficiency of Operations 

Efficiency of operations concerns the benefits to be derived from a 

unit structure bearing a rational relationship to the operations and 

organizational structure of the agency. FISC, Norfolk, 52 FLRA at 

961 citing DCASR, 4 FLRC 669 (1976). Factors examine the 

effect of the proposed unit on agency operations in terms of cost, 

productivity and use of resources. In FISC, Norfolk at 961, the 

Authority stated that: “a unit that bears a rational relationship to an 

agency’s operational and organizational structure could result in 

economic savings and increased productivity to the agency.” See 

also Local No. 3, International Federation of Professional and 

Technical Engineers, AFL-CIO-CLC, 7 FLRA 626, 627 (1982);

DOT, 5 FLRA at 653; Chicago Passport Agency, 8 A/SLMR at 

947- 948. 

< Where employees had specific local concerns which may result in 

grievances or bargaining matters unique to the facility, the facility 

commander had authority to address such grievances and 

bargaining matters as well as responsibility for day-to-day 

operations, and the agency was already engaged in labor relations 

dealings within another local level bargaining unit, the Authority 

held that there was nothing to prevent effective labor-management 

relations. DPRO-Thiokol, 41 FLRA 316. 

< The proposed field office unit was not so functionally integrated 

with other components of the agency that the establishment of a 

separate unit would result in unwarranted fragmentation of units 

leading to operational inefficiency and confused labor relations 

dealings. OCIJ Chicago, 48 FLRA 620. 

< The proposed regional office unit would hinder effective dealings 
8

and efficiency of operations where the evidence showed that the 

unique mission of the agency would be adversely affected by 

collective bargaining at the level proposed. The proposed unit was 

not appropriate. FAA, 20 FLRA 224 (1985). 

< The Authority does not place “undue emphasis” on centralized 

agency control of personnel and administrative matters when 

deciding effective dealings/efficiency of operations issues. A 

certain centralization of personnel and administrative 

considerations is inherent in government service and is frequently 

found within agencies. The Authority has specifically cautioned 

against finding that a local unit would inhibit effective dealings and 

impede efficiency of operations merely because of centralized 

administrative and personnel matters within the parent agency. 

DPRO-Thiokol, 41 FLRA 316. 

< The Authority found a unit of all medical interns, residents and 

fellows employed by the Activity and paid by the Agency 

appropriate for exclusive recognition at the Activity level. The 

Authority found the employees shared a clear and identifiable 

community of interest and that the unit promoted effective dealings 

and efficiency of operations. The Authority noted that the Activity 

had the authority and capacity to conduct effective labor relations 

at the level of recognition and the unit conformed to the 

organizational and operational structure of the Activity. Veterans 

Administration Medical Center, Brooklyn, New York, 8 FLRA 289, 

294 (1982). 

 

F. Impact of the Concept of Fragmentation on Unit 

Determinations :

When considering the three criteria in making appropriate unit 

determinations, the Authority decides appropriate unit questions 

consistent with the policy of preventing further fragmentation of 

bargaining units and reducing existing fragmentation, thereby 

promoting a more comprehensive bargaining unit structure. 

DCASR, 4 FLRC at 677 and Army and Air Force Exchange 

Service, Dallas, Texas (AAFES), 5 FLRA 657, 661-662 (1981) 

(Authority found proposed consolidated unit appropriate). 
Office of the General Counsel 

Representation Case Law Guide October 2000 

In DCASR, 4 FLRC 668 (1976), the FLRC elaborated on the 

principles enunciated in Tulsa AFS and considered the issue of 

fragmentation when deciding the appropriateness of units. In 

summarizing the responsibilities of the Assistant Secretary which 

flowed from section 10(b) of the Order, the FLRC stated at DCASR

at 677: 

Finally, and most importantly, the Assistant 

Secretary must make the necessary affirmative 

determinations that a unit clearly, convincingly 

and equally satisfies each of the 10(b) criteria in

recognition of and in a manner fully consistent 

with the purposes of the Order, including the 

dual objectives of preventing further 

fragmentation of bargaining units as well as 

reducing existing fragmentation, thereby 

promoting a more comprehensive bargaining 

unit structure. 

The legislative history of the Statute does not reflect that Congress 

intended to change the appropriate unit criteria or the analytical framework 

for deciding appropriateness unit issues in new or existing units affected by 

a reorganization. Decisions considered by the Authority have continued to 

carry over the principles and procedures for considering unit issues. FISC, 

Norfolk at 960. When applying the criteria enunciated in FISC, Norfolk to 

the facts of that case, the Authority stated that: “[i]n addition, we find that 

separating the employees of the Yorktown and Charleston Detachments 

into two very small units of exclusive recognition would result in the 

artificial and unwarranted fragmentation of an integrated organizational 

structure, thereby hindering the efficiency of the Activity’s operations.” 

G. Relevant Information : 

The information needed to make appropriate unit determinations is 

addressed in the attached outline (also in HOG 37 which provides 

guidance about this topic at hearing). This outline is available at Figure 

37.1 on the n:\figures subdirectory. 

NOTE: In a Decision and Order involving an appropriate unit question 

in an election petition, the Regional Director decides only whether the 
10

unit petitioned for in an election case or any alternative unit the 

petitioner has agreed to is appropriate. The Regional Director does 

not decide whether there is a more appropriate unit or whether the 

Activity’s proposed unit is appropriate if s/he finds that the 

petitioner’s unit(s) are not appropriate. See Department of 

Transportation, Federal Aviation Administration, New England 

Region (FAA), 20 FLRA 224 (1985). See HOG 33.9. 

Recent reference:

Securities and Exchange Commission, 56 FLRA 312 (2000). 
Office of the General Counsel 

Representation Case Law Guide October 2000 
12

REPRESENTATION OUTLINE I

(INFORMATION REQUIRED IN CASES INVOLVING 

APPROPRIATE UNIT QUESTIONS ) 

1. BASIC REQUIREMENTS

 A. Evidence

1. Standards. Assertions by the parties are not evidence. 

Evidence is established through the testimony of 

witnesses, stipulations and exhibits admitted into the 

record. 

 2. Necessity. At the prehearing conference and during the 

hearing, the Hearing Officer will determine the necessity 

of the testimony of proposed witnesses and proposed

exhibits and will identify additional witnesses whose 

testimony is required and additional exhibits necessary 

to a complete record. 

B. Witnesses

 1. Standards. The parties present witnesses who can 

testify to and answer questions concerning all facts and 

issues raised by the petition(s). 

 2. Necessity. All participants deemed necessary by the 

Hearing Officer will receive official time under section 

7131 of the Statute. Any disputes over necessity of 

participants will be decided by the Hearing Officer. 

 3. Knowledge. Witnesses testify to and answer questions 

about their personal knowledge of the facts. Secondhand, third-hand or lesser knowledge reduces the 

relevance of the testimony. 

 4. Reference to record. All testimony during the hearing 

refers to specific exhibits which have been introduced 

into the record. 

 5. Stipulations. All stipulations are based on fact and 

include information and exhibits, as necessary, 
Office of the General Counsel 

Representation Case Law Guide October 2000 

establishing the facts of the matter and/or referencing 

exhibits already received in the record which support the 

factual basis of the stipulation. 

 C. Testimony

 1. Standards. Witnesses testify to and answer questions 

about their personal knowledge of the facts and 

documents relevant to the issues of the case. When

testifying about documents, the witnesses are generally 

those who authored or initiated the documents. 

 

 2. Availability. If witnesses with personal knowledge are 

not readily available, the parties identify those with direct 

knowledge and also name additional witnesses whose 

personal knowledge most nearly approximates the direct 

testimony described above. 

 3. Identification. The parties name all of their respective 

witnesses and the subjects about which each witness

will testify prior to the prehearing conference. This 

allows the Hearing Officer to determine the necessity of 

the proposed testimony of these witnesses. 

 D. Documents

 1. Standards. Documents may be accepted into the 

hearing record by joint submission, by stipulation of the 

parties, or by one of the parties. 

 

 2. Identification and authentication. Any exhibit 

introduced by a party is identified by and testified to by a 

witness or witnesses who has\have first-hand knowledge 

of the authenticity of the exhibit, the content of the 

exhibit, and factual matters concerning the exhibit. 

 3. Regulations. If a party proposes to introduce excerpts 

from agency regulations, the excerpts are authenticated 

as true and correct copies. In addition, if only a portion 

from a regulation is submitted, a copy of the whole

regulation is available for review by the parties. 
14

 4. Joint exhibits. If the parties jointly introduce exhibits, 

all such exhibits may be referred to by witnesses and/or 

in briefs. 

 5. Objections. Any party objecting to the introduction of 

evidence should state the basis for the objection on the 

record. The Hearing Officer then allows the party 

proposing introduction of the evidence an opportunity to 

state a position. The Hearing Officer then rules on 

admissibility. Exceptions to overruled objections are 

automatically a part of the record. Thus, there is no 

need for the parties to state such exceptions. 

 6. Stipulations. Stipulations concerning the introduction of 

exhibits includes information demonstrating the factual 

basis of the stipulation and the relevance of the 

document. 

2. MISSION AND FUNCTION STATEMENTS

A. Mission. Agency statement of its basic mission. Activities' 

statements of basic mission(s). 

 

B. Function. Description of how each Activity functions (as 

needed). 

 1. Differences. If a proposed unit involves employees of a 

particular Activity but a party asserts that the unit is 

broader or narrower, basic mission statements of all 

entities is entered into the record and testified to. 

 2. Mission and function. Testimony is required from 

witness(es) knowledgeable about the mission and 

function of each Agency and Activity and the 

interrelationships between them. 

3. Exhibits. Obtain for the record copies of the mission 

and function statements from all affected Agencies,

Activities/organizational components. 
Office of the General Counsel 

Representation Case Law Guide October 2000 

3. ORGANIZATION

 A. Charts. Organizational charts of Agency and Activity(ies), 

updated as necessary. 

B. Identification. Testimony concerning which Activity(ies) employ 

the employees involved in the petition and where in the 

organization the employees are located is crucial. 

C. Commonality. Testimony is required concerning shared mission 

and functions of organizations in which employees involved in the 

position are employed. Testimony specifically identifies where in 

those organizations the employees are located. 

D. Geographic - Physical Location.

1. Organization. What are the geographic locations in 

relation to the organization of the Activities? Do

Activities have field organizations? Where? 

2. Function. Testimony matches the mission and function 

statements to the organizational charts, thereby showing 

each Activity's function and relationship to others. What 

is the organizational framework, beginning with the

major organizational components and working down the 

chart? What does each component do? Similarities? 

Differences? Interrelationships? 

3. Location. Where are each of the employees involved in 

the petition physically located? How far are the separate 

locations from each other? Describe any interchange of 

work and employees between locations. 

 

 4. Numbers. Obtain information concerning the numbers 

and types of employees at each agency / activity / 

organizational component. This can be established by 

having the Agency prepare an employee listing reflecting 

each employee’s organizational placement, job title, 

series and grade, and unit eligibility. 
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4. DELEGATIONS OF AUTHORITY

What authority has been delegated for bargaining, management, 

supervision, policy, procedure, regulation, administration, and personnel 

functions? At what level do these delegations exist? What is the effect of 

these delegations? 

5. BARGAINING HISTORY

A. Incumbents. Obtain the complete name of each exclusive 

representative and description of each unit at each Activity. 

 B. Units. Obtain copies of certifications/recognitions for each unit. 

C. Contracts. Obtain copies of the most recent collective 

bargaining agreements for each unit. What is the status of each 

such agreement, including the status of any negotiations? 

D. Dealings. What is the history of former or existing recognitions, 

including information as to elections, certifications and contracts. 

Obtain copies of all certifications, letters of recognition and 

contracts, for the proposed unit(s) and any other existing units of 

the agency. When were elections held, what groups of 

employees were involved and how many employees were

affected? Did contracts automatically renew? At what level were 

negotiations held, both term negotiations and impact 

negotiations? 

6. SUPERVISORY HIERARCHY

A. Structure. What is the supervisory structure at the Agency and 

at each Activity (as relevant) and the lines of supervisory 

authority within each Activity (and/or between Activities), using 

the organizational chart(s)? 

B. Nature. What is the extent and nature of supervisory duties and 

responsibilities within or between Activities? Who reports to 

whom? Who is responsible for specific supervisory functions 

within or between Activities? 

C. Control. Is supervision centrally or locally controlled within the 

organizational structure? Are there differences in the supervisory 
Office of the General Counsel 

Representation Case Law Guide October 2000 

controls between the Activities involved? Are supervisors 

responsible for common supervision over more than one work 

group? 

7. JOB FUNCTIONS AND SKILLS

 A. Positions. Obtain copies of the position descriptions for the 

categories of employees involved in the petition. 

B. Employees. The Activity is required to compile listing(s) of all 

employees involved in the petition which show each employee's 

name, position title, classification, grade and location within the 

organization. Include a numerical table showing total numbers of 

employees by eligibility in each proposed unit. 

C. Work. Evidence includes the types of work performed by 

employees involved in the petition, including descriptions of job 

duties and actual work performed, the flow of work within and 

between Activities, and the qualifications and training necessary 

to perform the work. 

D. Equipment. Is special equipment needed to perform certain 

work? Where is this equipment located? Is training needed to 

operate the equipment? What is the availability of such training? 

Are opportunities for advancement and/or movement between 

positions affected by the availability of this equipment or training? 

 

E. Differences. How do work flow, job duties and/or necessary 

qualifications, equipment and training differ within and between 

Activities? 

8. INTEGRATION OF OPERATION AND INTERCHANGE OF EMPLOYEES

A. Movement. Testimony and documents showing personnel 

movement, policy and decision making flow, using organizational 

charts. 

B. Commingling. Whether and how employees and functions are 

commingled among different organizations within and between 

Activities. 

C. Commonality. Whether and in what ways components of the 

Activities have employees, supervisors and/or managers in 
18

common, identifying the individuals involved using the 

organizational charts, employee listings, position descriptions, 

etc. 

D. Work flow. What is the flow of work processes, duties and 

responsibilities in relation to the mission(s)? Is there 

interrelationship or interdependence between components in work 

flow, processes or responsibilities? 

 E. Integration. In what ways are employees and their job functions 

integrated within and between Activities? Are there frequent 

transfers of work and/or personnel? How is this accomplished? 

How is the work coordinated within and between Activities? Are 

employees required to apply for openings to cross organizational 

lines? 

F. Operations. Is there employee contact between components in 

performing or transferring work? What is the relative isolation of 

components? Obtain a description of mobility and interchange of 

employees between components. What is the extent of 

telephone contact or inter-component visits? What for? By 

whom? How often? Where to and from? How many people 

involved? Clearance necessary from another component to 

perform certain work? 

G. Interchange. Who substitutes for employees' absences for 

vacation or illness? Over the prior year or so, what is the extent, 

purpose and duration of TDY assignments? What 

category/classification of employee(s) have gone on this travel 

and for what purpose? Within the past three years, how many 

permanent or temporary transfers were made laterally or by 

promotion? What category/classification of employee(s) were 

transferred and for what reason? Have the numbers of transfers 

increased or decreased ? If so, why? 

9. PERSONNEL POLICIES AND PRACTICES 

A. Pay systems. Description of the pay systems applicable to all of 

the employees involved (GS, WG, Excepted Service, NAF, etc.), 

including descriptions of the differences between pay systems. 

B. Payroll office. Location of servicing payroll office? Placement 

within the organizational structure? 
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Representation Case Law Guide October 2000 

C. Administrative Services

 1. Personnel services. Location of servicing personnel 

office? How is the personnel office staffed? Placement 

within the organizational structure? Who handles 

personnel management? Where does personnel 

management fit within the organizational structure? If 

there is more than one personnel office, are there 

differences in authority between personnel offices?

 2. Personnel actions. Are personnel actions done 

centrally or locally? Who decides on hiring, firing, 

promotion, transfer, layoff, and recall of employees? 

How are these actions accomplished and these actions 

processed? Where do the entities performing these 

functions fit within the organizational structure? 

 3. Employment and classification authority. Who has 

classification authority for the employees involved in the 

petition? Who decides to establish positions, to fill 

vacancies, and what skills or training are needed for a 

position? How are vacancies filled? What are the 

differences within or between Activities? 

 4. Retention, promotion and RIF. What are the areas of 

consideration? How were these established? How have 

they been applied recently? What are the differences 

within and between Activities? 

 5. Disciplinary and adverse action. Who has authority to 

propose and decide such action? What are the 

differences within or between Activities? 

 6. Personnel policies and regulations. Are personnel 

regulations promulgated centrally or locally? What are 

the differences within and between Activities? To what 

extent do local officials have any discretion with respect 

to implementing policies and regulations initiated 

centrally? 

D. Personnel changes. How are personnel moved between nonsupervisory positions? From non-supervisory to supervisory 

positions? What are the differences in the ways changes are 
20

accomplished within and between Activities? 

 

E. Employee services. At what level are programs administered for 

equal employment, employee assistance, upward mobility, 

disability and workers compensation benefits, individual 

development, retirement, and health and life insurance? What 

are the differences in these programs within and between 

Activities? 

 F. Conditions of Employment

 1. Hours. What are the hours of work of employees 

affected by the petition? Alternative Work Schedules, 

including whether employees work flexible schedules

and/or compressed work weeks? Compensatory time? 

Starting and quitting times? Core hours? Restrictions on 

days off? Lunch hours? Break times? How were these 

established? What are the differences within and 

between Activities or organizations within each Activity? 

 2. Training. What training is required and/or available for 

the employees involved in the petition? What are the 

differences in training within and between Activities? 

 3. Personnel. At what level is the authority for personnel 

policy, service, and/or action? At what level are 

employee service programs provided? What are the 

differences in programs, services, and levels of authority 

within and between Activities? 

 4. Associations. At what level do associations exist such 

as Credit Unions, athletic, health or wellness groups, 

blood drives, literacy projects, and/or public school 

sponsorship? What are the differences within and 

between Activities? 

 5. Impact. All parties state specific positions concerning 

impact of the possible unit findings. What impact on the 

Agency/Activity is there from the various possible unit 

findings? What is the impact on employees? 

 6. Factors. What are the areas of consideration for hiring, 

promotion and RIF? Who issues vacancy 

announcements? Who has the authority to hire, fire, lay 
Office of the General Counsel 

Representation Case Law Guide October 2000 

off, transfer or promote? Who determines the 

compensation and salary structure for vacancies? 

Where are the OPF's maintained? Who rates 

performance and writes appraisals? Who reviews and

approves the appraisals? Who has the authority to 

initiate disciplinary or adverse action? Who has the 

authority to issue travel orders, direct training of 

employees, grant incentive and achievement awards? 

Who assigns parking, determines break and leave 

schedules, approves leave, overtime and compensatory 

time? Who initiates personnel actions, personnel 

management programs, standards for performance 

evaluation and/or standards of personal conduct? Who 

determines the budget or is responsible for meeting a 

budget? Who has authority to negotiate and execute a 

collective bargaining agreement? 

 

10. EFFECTIVE DEALINGS

Efficient use of resources derived from inclusion in existing units and 

negotiation in one unit rather than many units in segments of the activities. 

 

A. History. What is the history of collective bargaining dealings 

under the existing unit structure(s)? How have labor relations 

policy and labor relations authority been implemented and 

exercised respectively? 
22

B. Grievances. What are the formal, informal, negotiated and 

activity grievance procedures for employees involved in the 

petition? What is the past history of grievance processing? 

C. Units. In what way would the proposed units involved in the 

petition affect existing bargaining and grievance procedures? 

The parties are required to state their positions as to how the 

proposed units would promote effective dealings. 

D. Authority. What is the locus and scope of responsible personnel 

office(s)? Who handles the various personnel functions at 

present? How would the existence of the proposed units affect 

this authority? Are the employees involved special or unique 

because of job duties or work location in a manner which could 

affect the appropriateness of unit. 

E. Limitations. What is the extent of and who has authority to 

negotiate? What limitations are there on the authority of the 

petitioned-for Activity to negotiate? Are there any matters which 

could be negotiated if the unit were different from that proposed in 

the petition? Are there matters which could be negotiated only if 

the unit structure were different from that proposed? Why is this 

so? 

F. Expertise. What is the likelihood that personnel with greater

labor relations experience will be available in the existing unit, the 

proposed unit or other possibly appropriate units? Who currently 

handles labor-management relations? Where in the 

organizational structure does this exist? At what level is labor 

relations consultation and support provided? 

G. Policy. At what level is labor relations policy set? How does the 

existence of multiple negotiated agreements, bargaining 

obligations, and grievance procedures affect labor relations 

dealings? Are employees performing essentially the same 

functions currently covered by different systems? 

H. Training. How and by whom are supervisors and managers 

trained in labor relations? Who decides on training requirements 

and those needing training? Where are the trainers located? 

11. EFFICIENCY OF AGENCY OPERATIONS

Benefits to be derived from a unit structure bearing a rational relationship 

to the operational and organizational structure of the Activity. 
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Representation Case Law Guide October 2000 

 

A. Organization. What, specifically, are the structure, chain of 

command, line of authority, and uniformity of personnel policy and 

practice considerations supporting the effectiveness of the 

various proposed units? 

B. Structure. What are the organizational structure, supervisory

hierarchy, chain of command, authority over work functions, 

personnel and labor relations policies and dealings? Who reports 

to whom? What is the organizational structure of the personnel 

staff? 

C. Authority. Do personnel with operational authority also have 

labor relations authority? What are the differences within and 

between Activities? 

D. Benefits. Why would any proposed unit be more beneficial than 

another proposed unit? How do the personnel policies and job 

benefits of employees differ within and between Activities? 

E. Resources. How is the effective use of negotiation resources

derived from the existing unit structure? How would the proposed 

units affect the use of these resources? What effect would the 

various proposed units have on cost of the labor-management 

program, hours spent administering the program, staffing 

requirements, etc. 

F. Impact. 

1. Views. What are the parties' views of the impact of the

proposed and/or other potentially appropriate units on 

efficiency of operations or the effectiveness of dealings? 

2. Agency operations. What is the impact of the 

proposed unit structure on agency operations in terms of 

cost, productivity and use of resources? 

 a. Cost. What savings or costs (in terms of labor 

relations personnel, productivity, etc.) result 

from the existing unit(s), proposed unit(s) or 

other possibly appropriate units? What effect 

would the proposed unit(s) have on the cost of 

the labor-management relations program, hours 

spent administering the program, staffing 
24

requirements, etc.? 

 b. Productivity. What impact on productivity 

would result from the existing unit(s), proposed 

unit(s), other possibly appropriate unit(s), or the

existence of one or several units. Productivity 

includes work performed by employees as it 

affects them if one unit were found appropriate 

versus several and work performed by the 

managerial, supervisory and labormanagement staff. 

G. Fragmentation. Would the proposed unit result in 

fragmentation? If so, how, and how would this affect agency 

operations? 
Office of the General Counsel 

Representation Case Law Guide October 2000 

2 Scope of unit (including residual units, add-ons, expanding and 

contracting units)

When applying the three appropriate unit criteria, section 7112(a) of the 

Statute also requires that the Authority will determine the scope of the 

proposed unit, that is, whether: 

...the appropriate unit should be established on an

agency, plant, installation, functional or other basis. 

The scope of a unit involves a variety of appropriateness of unit issues. 

For instance, scope of unit questions may arise following reorganizations 

or when a union seeks exclusive recognition for a group of the agency's 

unrepresented employees. Scope of unit questions may also arise in 

petitions involving add-on elections to existing units, residual units, units of 

employees specifically excluded from existing units and expanding and 

contracting units. 

In general, the relevant information in a case involving the scope of a unit 

is identical to that at issue in any case involving unit appropriateness. See 

RCL 1 - Appropriate Unit Determinations, Representation Outline I.

A. Size and Functional Grouping : The Authority has found appropriate a 

wide variety of differently sized and configured bargaining units, based on 

case-by-case application of the statutory criteria, considering such factors 

as geographic and organizational location, commonality of working 

conditions and degree of operational and functional separation. The size

of a proposed unit is only one factor considered in the context of all facts 

and circumstances relevant to appropriateness of unit. 

< The Authority has found appropriate very small units, if the units otherwise 

meet the criteria set out in section 7112(a)(1). A unit of less than twenty 

employees was appropriate for exclusive recognition. U.S. Department of 

the Air Force, Edwards Air Force Base, California (Edwards), 35 FLRA 

1311 (1990). 

< The small size of a proposed unit does not automatically disqualify the unit 

from being found appropriate. However, to be appropriate, there must be 

more than one employee in the unit as "the principle of collective 

bargaining presupposes that there is more than one person on whose 

behalf bargaining takes place." General Services Administration, Las 
2

Vegas Fleet Management Center, Sparks Field Office, Sparks, Nevada 

(GSA Sparks), 48 FLRA 1258 (1993). See also, Report on a Ruling of the 

Assistant Secretary No. 44, 2 A/SLMR 637 (1972). 

< Unit of employees of single field office found appropriate. OCIJ, Chicago, 

48 FLRA 620 (1993). 

< Unit of employees of district office found appropriate. U.S. Department of 

the Interior, U.S. Geological Survey, Caribbean District, 46 FLRA 832 

(1992). 

 

< Unit of employees of single plant found appropriate. DPRO-Thiokol, 41 

FLRA 316 (1991). 

< Unit of employees of one activity at multi-activity base was appropriate. 

Department of the Air Force, 6th Missile Warning Squadron, Otis Air Force 

Base, 3 FLRA 111 (1980). 

< A regional level unit of air traffic control specialists was not appropriate, as 

employees shared community of interest with all other specialists 

nationwide. Department of Transportation, Federal Aviation Administration, 

New England Region (FAA), 20 FLRA 224 (1985). 

< Unit of employees in a single department of Activity was not appropriate 

given extensive interchange among employees in other line departments. 

Naval Sea Support Center Atlantic Detachment, 7 FLRA 626 (1982). 

The Authority also applies the section 7112(a) criteria in determining the 

appropriateness of proposed units limited to employees in a particular 

functional grouping. 

< Employees in a proposed unit of air traffic control specialists and 

technicians had unique qualifications, physical requirements, hours of 

work, work processes and retirement provisions and there was limited 

interchange between the employees in the proposed unit and other agency 

employees. The proposed unit was appropriately structured around a 

functional grouping of employees who possessed characteristics and 

concerns limited to that group. See Edwards, 35 FLRA 1311 (1990). 

< Absent unusual circumstances warranting severance, a unit based on 

functional grouping will not be found appropriate if there is a history of 

representation in a larger unit. Library of Congress, 16 FLRA 429 (1985); 

Department of the Air Force, Carswell Air Force Base, Texas, 40 FLRA 
Office of the General Counsel 

Representation Case Law Guide October 2000 

221 (1991). See section 45 - Severance. Where there is no such 

bargaining history, such units may be found to be appropriate, assuming 

that all three statutory criteria are met. See Edwards; FAA, 20 FLRA 224.

< A proposed unit of temporary cooks was not appropriate for exclusive 

recognition where there was evidence of extensive interchange between 

cooks and other employees; the cooks lacked a separate and distinct 

community of interest. U.S. Army Air Defense Artillery Center and Fort 

Bliss, Fort Bliss, Texas, 31 FLRA 938 (1988). 

B. Residual Units : A residual unit is a unit of all eligible unrepresented 

employees of the type covered by the petition. See Federal Trade 

Commission (FTC II), 35 FLRA 576 (1990). Residual unit claims are most 

frequently made in petitions seeking to add a previously unrepresented 

group of employees to an existing unit, however, adding these employees 

to an existing unit is not a requirement. In order for a unit to be considered 

“residual,” the petition must seek to represent all “eligible” unrepresented 

employees in the organization. If the evidence demonstrates a proposed 

unit is a residual unit, strict application of the appropriateness criteria is not 

required. See FTC II and GSA Sparks. However, if the evidence 

demonstrates that a proposed unit is not a residual unit, all 

appropriateness of unit criteria of section 7112(a) must be met. Handling 

complicated elections involving a group of residual employees when there 

is an intervenor raise novel issues. See CHM 58.3.16.

C. Add-ons to Existing Units : Where a union petitions for an election to 

add employees to an existing unit, the inclusion of such employees must 

result in an overall unit which meets the criteria for appropriateness of unit 

set forth in section 7112(a) of the Statute. In addition, if the proposed unit 

to be added is not a residual unit, it must independently constitute an 

appropriate unit. Thus, in any case involving an add-on to an existing unit, 

it may be crucial to determine whether the unit is a residual unit, in order to 

decide whether to apply the three appropriate unit criteria. See GSA 

Sparks (in which the Authority held that a unit was not a residual unit, was 

not appropriate standing alone and, therefore, was not an appropriate addon to an existing unit). 

D. Expanding and Contracting Units : Expanding and contracting unit 

issues arise when the unit appears to be either growing or shrinking during 

the time that the petition is processed. In cases involving successorship, 

issues may arise as to the appropriate time for determining whether 

employees of the predecessor constitute a majority of the successor’s unit. 

See Naval Facilities Engineering Service Center, Port Hueneme, California 

(NFESC), 50 FLRA 363 (1995). Both contracting and expanding units may 
4

also raise the issue of “at what point” or “when” an election may be held. 

Trident Refit Facility, Bangor, Bremerton, Washington, 5 FLRA 606 (1981). 

Expanding Units

< Parties may assert arguments concerning the adequacy of a showing of 

interest based on an expanding unit. When an agency's operations are 

expanding, a showing of interest is required only among those employed at 

the time that the petition is filed. U.S. Department of Transportation, U.S. 

Coast Guard Finance Center, Chesapeake, Virginia (Coast Guard), 34 

FLRA 946 (1990). The Hearing Officer limits any such assertion 

concerning the showing of interest to a statement of position. 

< An election may be conducted in an expanding unit if the work force then 

on the rolls is “substantial and representative” of the skills and types of 

employees who will ultimately constitute the unit. Coast Guard, citing Fall 

River Dyeing and Finishing Corp. v. NLRB (Fall River Dyeing), 482 U.S. 

27, 48 (1987).

< Where there is evidence of a substantial and representative complement of 

employees, delaying an election until full staffing is achieved unduly 

frustrates the existing employees' ability to choose a representative, if any. 

See Coast Guard.

Contracting Bargaining Units

< Contracting bargaining unit issues arise when there are immediate and 

fundamental changes in the employer’s operations after a petition is filed 

and a party claims that it is not appropriate to conduct the election at a 

particular point in time because of the changes. The Authority has rejected 

such assertions when the claim of a contracting unit was speculative. See 

Federal Deposit Insurance Corporation (FDIC), 34 FLRA 50 (1989). In 

FDIC, the Authority distinguished the circumstances present in FDIC from 

certain NLRB cases involving immediate and fundamental changes in the 

employer's operations. 

< The agency anticipated eliminating an entire category of employees in the 

petitioned-for unit. This change was to occur gradually over a two-year 

period and the remaining category of employees in the petitioned-for unit 

simultaneously was to increase by roughly the same number. The 

Authority declined review of the Regional Director’s decision to conduct the 

election. FDIC.
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Representation Case Law Guide October 2000 

< No election was held in circumstances where the employer had just 

reorganized and five of the six employees in the petitioned-for unit had 

become supervisors. United Transports, Inc., 107 NLRB 1150 (1954). 

< Where most of the work of the bargaining unit had been contracted out and 

the layoff of 75% of the employees was imminent, no election was held. 

Douglas Motors Corp., 128 NLRB 307 (1960). 

See HOG 38 for specific guidance about this topic at hearing.

Other References:

 Department of the Air Force, Langley, Virginia, 40 FLRA 111 (1989). 

Department of the Air Force, 90th Missile Wing (SAC), F.E. Warren Air 

Force Base, Cheyenne, Wyoming (F.E. Warren), 48 FLRA 650 (1990). 

Department of the Interior, National Park Service, 55 FLRA 311 (1999) 

(functional unit of Agency-wide unrepresented Law Enforcement Park 

Rangers, Criminal Investigators, and Correctional Officers are not an 

appropriate separate unit). 

Defense Logistics Agency, Defense Supply Center Columbus, Columbus, 

Ohio, 53 FLRA 1114 (1998). 

Immigration and Naturalization Service, 12 FLRA 309 (1983). 
6

 
Office of the General Counsel 

Representation Case Law Guide October 2000 

1

3 Effect of changes in the character and scope of a unit due to a 

reorganization or realignment in agency operations

This section discusses changes due to a reorganization or realignment in 

agency operations. These issues arise in petitions which seek to clarify or 

amend a certification or recognition in effect or a matter relating to 

representation. This section is divided into six parts: 

A. Purpose and Standards for Resolving Issues Arising from 

Reorganizations. 

1. Analyzing the Effect of Reorganizations on Existing 

Bargaining Units 

2. Relevant Information Required 

B. Successorship. 

C. Accretion. 

D. Competing Claims of Successorship and Accretion.

E. Consolidated Units. 

F. Unresolved Issues.

A. Purpose and Standards for Resolving Issues Arising from 

Reorganizations. 

1. Analyzing the Effect of Reorganizations on Existing

Bargaining Units 

Section 7111(b)(2) provides, in relevant part, that if a petition is filed with 

the Authority: 

by any person seeking . . . an amendment to, a 

certification then in effect or a matter relating to 

representation; the Authority shall investigate 

the petition, and if it has reasonable cause to 

believe that a question of representation exists, 

it shall provide an opportunity for a hearing (for 
2

which a transcript shall be kept) after a 

reasonable notice. 

This section applies whenever a petition is filed to resolve the effect of an 

agency reorganization on an existing unit, either with respect to employees 

who remain in the unit, employees who have been transferred from the unit 

or employees who have been added to the unit. See CHM 27.5, Hearing 

Requirements.

The substantive factors applied in cases arising from reorganizations have 

remained valid and consistent since Executive order 11491. As 

discussed in RCL 1, Appropriate Units, any case that concerns a 

question of representation requires an appropriate unit determination 

prior to proceeding to other issues. Section 7112(a) of the Statute sets 

out the criteria for determining whether a unit is an appropriate unit for 

exclusive recognition: 

 The Authority shall determine the 

appropriateness of any unit. The Authority shall 

determine in each case whether, in order to ensure 

employees the fullest freedom in exercising the rights 

guaranteed under [the Statute], the appropriate unit 

should be established on an agency, plant, installation, 

functional or other basis and shall determine any unit to 

be an appropriate unit only if the determination will 

ensure a clear and identifiable community of interest 

among the employees in the unit and will promote 

effective dealings with and efficiency of the 

operations of the agency involved. 

Thus, in making determinations under section 7112(a), the Authority 

examines the factors presented on a case-by-case basis.1

 To meet the 

 

1

United States Department of the Navy, Fleet and Industrial Supply Center, 

Norfolk, Virginia, 52 FLRA 950 (1997) (FISC, Norfolk) (a reorganization case 

in which the Authority considered how to resolve representation issues that 

result from a reorganization where both successorship and accretion are 

claimed to apply to the employees) citing Defense Mapping Agency, 

Aerospace Center, St. Louis, Missouri, 46 FLRA 502 (1992) (Defense 

Mapping Agency) (the Authority found that the employees were part of four 

functionally distinct groups of employees who did not share a community of 

interest with the employees in the Union's existing unit and whose inclusion in 

the existing unit would not foster effective dealings or efficiency of the 
Office of the General Counsel 

Representation Case Law Guide October 2000 

3

requirements of the Statute, a proposed unit need only be an appropriate 

unit.2 The Authority requires that each of the appropriate unit criteria be 

given equal weight in order to foster the goal of a more effective and 

efficient government.3 Moreover, as first clarified by the Federal Labor 

Relations Council (FLRC), the Authority must affirmatively determine that 

any proposed unit of exclusive recognition satisfies each of the three 

criteria before that unit can properly found to be appropriate4. 

The Authority is required to make appropriate unit determinations to 

resolve reorganization-related questions related to representation in the 

same manner as when it decides the appropriateness of units of 

unrepresented employees in election petitions.5 Thus, in reorganization 

 

Agency’s operations).

2

American Federation of Government Employees, Local 2004, 47 FLRA 969, 

973 (1993) (Authority upheld RD’s decision that petitioned-for unit is 

appropriate).

3

FISC, Norfolk at n. 6 citing Department of Transportation, Federal Aviation 

Administration, Southwest Region, Tulsa Airways Facilities Sector, 3 FLRC 

235 (1975) (Tulsa AFS) [an appeal to the Federal Labor Relations Council

(FLRC) from a decision of the Assistant Secretary that considered the 

Assistant Secretary’s responsibilities when deciding appropriate unit questions 

arising from reorganizations. The FLRC decision also discussed the 

development of the appropriate unit criteria under Executive Order 11491].

4

Tulsa AFS at 240.

5

Morale, Welfare and Recreation Directorate, Marine Corps Air Station, 

Cherry Point, North Carolina, 45 FLRA 281(1992) (Morale, Welfare) (a case 

that considered the effects of a reorganization on an established unit and also 

provided policy guidance when examining the impact of a reorganization on an 

established unit) and Labor-Management Relations in Federal Service, 1975, 

at 51, published by the Federal Labor Relations Council, FLRC 75-1 (4/75) 

(“the resolution of reorganization-related representation problems is already 

governed by a policy requirement in section 10(b) of E.O. 11491 that units of 

exclusive recognition must ensure a clear and identifiable community of 

interest among the employees involved and must promote effective dealings 

and efficiency of agency operations”). 
4

cases, the Region develops a complete factual record upon which it can 

examine each of the appropriate unit criteria and make an affirmative 

determination regarding the effect of the reorganization on the continued 

appropriateness of the unit(s) and the rights of the parties.6

 

The record includes information relevant to making an affirmative 

determination with respect to each of the three appropriate unit criteria. 

Evidentiary considerations which may be relied upon to support a finding of 

a community of interest, for instance, may not be solely the basis for 

concluding that a unit will promote effective dealings and efficiency of 

operations.7

 Finally, the Authority is required to decide appropriate unit 

questions consistent with the policy of preventing further fragmentation of 

bargaining units and reducing existing fragmentation, thereby promoting a 

more comprehensive bargaining unit structure.8

 

To carry out their responsibilities to assist the parties in resolving 

representation issues arising from reorganizations, it is imperative that 

Regional Office personnel become familiar with Authority and Assistant 

Secretary case law concerning reorganizations and other realignments in 

agency operations that may result in substantial changes in the character 

and scope of exclusively recognized bargaining units. Regional Office 

personnel: 

 

6

Morale, Welfare at 286 citing Federal Aviation Administration, Aviation 

Standards National Field Office (Aviation Standards), 15 FLRA 60, 63 (1984) 

(the Authority considered the effects of a reorganization on a variety of 

bargaining units and found different results based on the record facts). 

7

Defense Supply Agency, Defense Contract Administration Services Region 

(DCASR), San Francisco, California et al., 4 FLRC 669 (1976) (DCASR) (three 

election petitions which the FLRC considered on appeal from the A/SLMR and 

reaffirmed and elaborated on the discussion in Tulsa AFS).

8

Army and Air Force Exchange Service, Dallas, Texas, 5 FLRA 657, 661-662 

(1981) (AAFES) (Authority found proposed consolidated unit appropriate).

< identify representation issues, 

< obtain relevant facts, 

< discuss applicable case law and 

< assist the parties in narrowing and resolving issues 
Office of the General Counsel 

Representation Case Law Guide October 2000 

consistent with the Statutory requirements for appropriate units 

and unit eligibility (see HOG 2.3, ethical considerations, CHM 1

and CHM 25). 
6

 2. Relevant Information Required: 

The Authority in Morale, Welfare and Recreation Directorate, Marine Corps 

Air Station, Cherry Point, North Carolina (Morale, Welfare), 45 FLRA 281 

(1992) set forth the responsibility of a Regional Director in deciding cases 

arising from changes to existing units that are caused by reorganizations. 

The standard set forth in Morale, Welfare is still applied to any case filed 

by a party or parties that raise a matter related to the representation of 

employees in bargaining unit(s) affected by reorganizations or 

realignments of agency operations. 

...the Regional Director must examine the effect 

of the reorganization in order to determine the 

continued appropriateness of the unit or units 

and the rights of the parties. 

Morale, Welfare, 45 FLRA at 286. In U.S. Department of the Navy, 

Commander, Naval Base, Norfolk, Virginia (USN), 56 FLRA 328 at 332 

(2000) the Authority stated that, “in determining whether an existing unit 

remains appropriate after a reorganization, it will focus on the changes 

caused by the reorganization,” (citing Morale, Welfare) “and assess 

whether those changes are sufficient to render a recognized unit 

inappropriate” citing Defense Logistics Agency, Defense Supply Center 

Columbus, Columbus, Ohio (DLA Columbus), 53 FLRA 1114 at 1122-23 

(1998). In USN, the Authority also stated that it “makes appropriate unit 

determinations on the basis of a variety of factors, without specifying the 

weight of any individual factors,” citing, e.g., Local 2004, 47 FLRA 969, 972 

(1993). The Authority also considered the effect on bargaining units of 

reorganizations that modify portions of the chains of command at 

managerial levels, but do not affect the day-to-day working conditions of 

bargaining unit employees. Finally, the Authority found that a change in 

the chain of command, by itself, will not render an existing unit 

inappropriate. 

Factors considered in cases raising issues related to changes in the 

character and scope of existing bargaining units are the same as any 

other cases in which appropriate unit issues are raised. However, 

three issues affect any determination the Region or the Authority 

makes with respect to the impact of a reorganization on employees in 

existing bargaining units. 
Office of the General Counsel 

Representation Case Law Guide October 2000 

a. When seeking information about the three appropriate unit 

criteria, it is first necessary to address the factors from two 

perspectives: how the unit functioned prior to the change 

and how it functions after the change. Evidence is obtained 

with respect to the mission and organizational structure and other 

appropriate unit criteria both before and after the 

reorganization. Changes to employees and their conditions of 

employment, particularly their day-to-day working conditions, the 

actual impact on employees and the impact on agency

operations, the blending of employees are all compared to the 

employees’ conditions of employment prior to the reorganization.

There are no hard and fast rules pertaining to determining unit 

appropriateness; and as a rule, no factor can “weigh” more than any other. 

However, given the circumstances of a reorganization and the changes 

resulting from the reorganization, each case may have factors that are 

more significant than others. Clearly the evidence has to be sufficient to 

enable the Regional Director and the Authority to make an affirmative 

decision that any proposed unit of exclusive recognition satisfies each of 

the three criteria. The Authority examines the totality of circumstances 

including the objective of preventing further fragmentation of bargaining 

units and reducing existing fragmentation, thereby promoting a more 

comprehensive bargaining unit structure. 

Prior to deciding the impact of a reorganization on an existing collective 

bargaining unit, an inquiry is made to ascertain what happened to 

employees affected by the reorganization, and, in particular, whether and 

how their conditions of employment were changed by the reorganization. 

Issues may concern the impact of the reorganization on an entire unit or on 

a particular group of employees in the unit. In reorganization-related 

representation cases that involve deciding the effects of a reorganization 

on an entire existing unit, the evidence must demonstrate how the 

reorganization affected the entire unit. Where the reorganization only 

affected some of the employees in the unit, the evidence must 

demonstrate that the employees at issue have significant employment 

concerns or personnel issues that are different or unique from those of 

other employees in the unit.9

 Application of the appropriate unit criteria to 

 

9

See, e.g.,, Defense Logistics Agency, Defense Supply Center Columbus, 

Columbus, Ohio, 53 FLRA 1114, 1131 (1998) (DLA Columbus) (unique case 

involving appropriate unit, successorship and accretion questions where a 

union sought to continue to represent employees who had been 
8

changes in existing units requires a diagnostic approach to assessing the 

effect of the reorganization on the character and scope of the unit. 

To summarize, when examining the effects of a reorganization on an 

existing appropriate unit, the evidence reflects the employees’ terms and 

conditions of employment as well as other factors that are routinely 

considered when examining the appropriate unit criteria both before and 

after the reorganization. This is the best method for ensuring an adequate 

record and one that will provide sufficient information to decide the 

continued appropriateness of the unit and/or the extent that the 

reorganization affected employees in the existing unit. 

 

geographically relocated to an activity and the positions they encumbered 

were specifically both excluded from the unit represented by that union and 

included in the description of a unit represented by another union) and FISC, 

Norfolk, 52 FLRA at 961.

b. Additionally, timing is significant. 

Frequently, agencies involved in large reorganizations are not certain as to 

what the activity/agency structure will be upon completion of the 

reorganization, or when that completion will occur. Thus, there are interim 

organizations, relocations without official reassignments, and multi-year 

(phase-in) implementations. The timing of the petition could affect the 

outcome, and could result in the same reorganization being the subject of 

different petitions at different times. When conducting hearings in such 

cases, the Regions ensure that the record reflects the stage of the 

reorganization and any further agency plans regarding future related 

reorganizations. Case law dictates that any unit determination is 

based on the facts presented at the time of the hearing. DPRO - 

Thiokol, 41 FLRA at 327. 
Office of the General Counsel 

Representation Case Law Guide October 2000 

c. Finally, the record examines the broad impact of the 

reorganization on the agency as well as the effect of the 

reorganization on the activity.10

 

Considering the record from broad and narrow perspectives allows the 

Regional Director to consider all criteria and significantly, the issue of 

fragmentation. In this manner, the Regional Director solicits, and the 

parties introduce, sufficient evidence to resolve all issues. 

FISC, Norfolk is an excellent example of why it is necessary to obtain 

information about the affected employees from the perspectives of their 

inclusion in an appropriate unit prior to a reorganization and after a 

reorganization. In FISC, Norfolk, a case involving claims of successorship 

and accretion, the Authority had to balance the parties’ competing claims: 

NAGE claimed that separating employees from the base-wide unit at the 

Yorktown detachment would be inappropriate and cause fragmentation; 

but FISC argued that not including the Yorktown detachment in FISC, 

Norfolk would cause fragmentation in FISC. 

This case also demonstrates that it is important to obtain complete 

evidence about the facts and circumstances giving rise to the petition, i.e., 

often from a broader scope or perspective than reviewing the impact on 

the employees at a single site. For instance, if NAGE had filed the petition 

in FISC seeking a determination of the effect of the establishment of FISC 

only on its base-wide unit at Yorktown, the record may have emphasized 

different facts even though the results should have been the same. 

However, a review of relevant case law confirms that “how” and “what” 

evidence is presented may often lead to different results. Because the 

record in FISC, Norfolk presented evidence from both broad and narrow 

perspectives, the facts clearly demonstrated that including the Yorktown 

detachment in the FISC, Norfolk Activity was appropriate. 

Once this information is obtained and evaluated, the facts are applied to 

the appropriate unit criteria set forth in section 7112(a) of the Statute. The 

facts are assessed to determine whether the change was a “paper” 

reorganization, i.e., nothing more than a technical change in the name of 

the activity or agency, or a change in the level of recognition; or whether 

the change affected the character and scope of the unit significantly 

enough to render it inappropriate. 

 

10See Defense Mapping Agency and FISC, Norfolk.
10

There are a variety of representation scenarios and issues that may result 

from an agency reorganization: 
Office of the General Counsel 

Representation Case Law Guide October 2000 

1) Where the character and scope of a bargaining unit have not 

changed substantially, the Regional Director may properly find 

that the existing unit remains appropriate and the exclusive 

representative of that unit continues to be the exclusive 

representative of that unit. Federal Aviation Administration, 

Aviation Standards National Field Office (Aviation Standards), 15 

FLRA 60, 63 (1984). 

 2) A bargaining unit may be accreted to another established 

bargaining unit. Id. at 67-68; Defense Contract Audit Agency, 6 

A/SLMR 251, 252 n.7 (1976). 

 3) One or more bargaining units may be combined to form an 

entirely new unit. Department of the Army, 89th Army Reserve 

Command, Wichita, Kansas (Department of the Army), 7 A/SLMR 

796, 798-99 (1977); Navy Public Works Center, San Francisco 

Bay (Public Works Center), 6 A/SLMR 142, 147 (1976); . 

 (a) Where this new unit contains all the components of the 

previously recognized units, or where substantial 

portions of the former units can be identified within the 

new unit, and the new unit is appropriate for exclusive 

recognition, the Regional Director may properly order an 

election to determine which of the unions, if any, shall 

represent the new unit. Department of the Army; Public 

Works Center. 

 (b) Where, however, a substantial portion of the former units 

cannot be identified within the new unit, the Regional 

Director may properly decide not to order an election, 

especially where the new unit also includes employees 

who have previously been unrepresented. Aviation 

Standards, 15 FLRA at 67-68; Department of the Army. 

 4) A gaining entity may be a successor to the former entity and a 

union retains its status as the exclusive representative. Naval 

Facilities Engineering Service Center, Port Hueneme, California 

(NFESC), 50 FLRA 363 (1995). A gaining entity may be a 

successor to the former entity and a union retains its status as the 

exclusive representative because it is sufficiently predominant 

over another labor organization that was also transferred to the 

new entity. Department of the Army, U.S. Army Aviation Missile 

Command, Redstone Arsenal, Alabama (AMCOM II), 56 FLRA 
12

126 (2000). 

 5) Due to a change in the character and scope of the unit: (1) a 

bargaining unit is no longer appropriate; and/or (2) an exclusive 

representative of an appropriate unit ceases to be the exclusive 

representative of that unit. 

 

In the cases cited, it has been the "totality of the circumstances" upon 

which the Authority based its decision that a unit may continue to be 

appropriate, or if not, whether and when an election is appropriate. 
Office of the General Counsel 

Representation Case Law Guide October 2000 

B. Successorship. 

Successorship involves a determination of the status of a bargaining 

relationship between an agency/activity which acquires employees who 

were in a previously existing bargaining unit, and a labor organization that 

exclusively represented those employees prior to their transfer. The 

representation petition is a nonadversarial process for determining the new 

activity's obligation to recognize and bargain with a union that had 

represented the employees of its predecessor. 

When addressing successorship issues and other issues related to the 

effects of reorganizations on bargaining units, the interests in maintaining 

stable bargaining relationships that are affected by massive 

reorganizations must be balanced with the rights of employees to choose 

their representative. In Naval Facilities Engineering Service Center, Port 

Hueneme, California, (NFESC), 50 FLRA 363 (1995), the Authority 

established three criteria to determine whether, following a reorganization, 

a new employing entity is the successor to a previous one such that a 

secret ballot election is not necessary to determine representation rights of 

employees who were transferred to the successor. The Authority will "find 

that a gaining entity is a successor, and a union retains its status as the 

exclusive representative of employees who are transferred to the 

successor, when: 

< An entire recognized unit, or a portion thereof, 

is transferred and the transferred employees: (a) are in 

an appropriate bargaining unit, under section 7112(a)(1) 

of the Statute; and (b) constitute a majority of the 

employees in such unit; 

< The gaining entity has substantially the same 

organizational mission as the losing entity, with the 

transferred employees performing substantially the same 

duties and functions under substantially similar working 

conditions in the gaining entity; and 

< It has not been demonstrated that an election is 

necessary to determine representation." 
14

 1. Criterion One - Characteristics of the unit: 

The Authority stated that successorship is not precluded because an entire 

unit is not transferred intact to the new entity, Hydrolines, Inc., 305 NLRB 

416, 422 (1991); what is required is that the acquired employees must be 

in appropriate units both before and after successorship, International 

Union of Petroleum & Industrial Workers v. NLRB, 980 F.2d 774, 780 (D.C. 

Cir. 1992). The Authority also stated that the portion of the unit which is 

transferred need not constitute a separate appropriate unit by itself, 

provided that the transferred employees constitute a majority of the posttransfer unit. Thus, successorship is possible “even if only a portion of a 

unit is transferred, and a post-transfer unit may be found appropriate even 

if it has been expanded to include employees in addition to those 

transferred.” 

A finding of successorship results in continued recognition without a new 

secret ballot election as required under the Statute. Thus, a finding of 

successorship depends on the fact that the affected union is the choice of 

a majority of employees in the claimed successor’s unit. Accordingly, 

although the post-transfer unit need not encompass the transferred 

employees exclusively, those employees must constitute a majority of the 

post-transfer unit. 

In cases where the reorganization is ongoing or subject to long term 

implementation or a “start-up period,” the Authority has adopted the 

NLRB’s substantial and representative complement” test for determining 

whether the successor’s unit is sufficiently representative of the ultimate 

unit, in size and composition, so that it is appropriate to measure whether 

employees of the predecessor constitute a majority of the unit. See Fall 

River Dyeing & Finishing Corp. v. NLRB (Fall River), 482 U.S. 27 (1987) 

and Coast Guard, 34 FLRA 946, 951-54 (1990). (The Authority adopted 

the "substantial and representative complement" test to determine whether 

and when to hold a representation election in an expanding unit.) 

Summary of criterion: 

< An entire unit need not be transferred intact to the 

new entity. NFESC, 50 FLRA 363 (1995). 
Office of the General Counsel 

Representation Case Law Guide October 2000 

< Acquired employees must be in appropriate units 

both before and after successorship. NFESC.

< The portion of the unit which is transferred need 

not constitute a separate appropriate unit by itself, provided 

that the transferred employees constitute a majority of the 

post-transfer unit. NFESC. 

< The method used to move the employees from one 

entity to another has no bearing on the requirement that 

they be transferred. FISC, Norfolk, 52 FLRA 950 (1997). 

< “Transferred employees” set forth in FISC is a 

generic term that refers to any organizational movement of 

employees within an agency or between agencies, 

regardless of the method of the reorganization. Defense 

Supply Center, Columbus, 53 FLRA 1114(1998). 

< “Gaining organization” refers to a pre-existing or

newly established organization. FISC, Norfolk at n.4. 

< Majority standard applies. Department of the 

Interior, Bureau of Land Management, Sacramento, 

California, and Department of the Interior, Bureau of Land 

Management, Ukiah District office, Ukiah, California, 53 

FLRA 1417, 1422 (1998). 

 2. Criterion Two - Characteristics of the successor 

employer and continuity in working conditions: 

This criterion requires that the claimed successor have 

substantially the same organizational mission as the losing entity 

and that transferred employees perform substantially the same 

duties and functions under substantially similar working conditions 

after the transfer. 

Summary of criterion: 

< The Authority does not require that the missions of 
16

the predecessor employer and the claimed successor be 

identical. 

< The question is whether in a basic sense, the new 

entity is in essentially the same business as its 

predecessor. 
Office of the General Counsel 

Representation Case Law Guide October 2000 

< The emphasis is on the employees’ perspective, 

that is, whether the employer’s operations, as they affect 

unit employees, remain essentially the same after the 

transfer. See Fall River, 482 U.S. 27 (1987). 

< The Authority’s approach is primarily factual in 

nature and based on the totality of circumstances of a 

given situation. 

< In order for the mission to be substantially 

changed, the mission of the new entity represents any new 

elements not found in one or more of the other 

disestablished organizations. See NFESC, 50 FLRA 

363 (1995) and AMCOM II, 56 FLRA 126, 130 (2000) (the 

mission of the new entity blended the two missions of the 

former activities into the gaining employer while 

maintaining a mission in the new entity that is substantially 

the same as the missions in the disestablished entities). 

 3. Criterion Three - An election is not necessary: 

The mere filing of a representation petition for an election will not 

preclude the finding of successorship. The Authority has and will 

continue to decide whether units continue to be appropriate after 

reorganizations, and if not, whether and when an election is 

warranted. See Morale, Welfare, 45 FLRA 281 at 286 (1992) and 

NFESC, 50 FLRA 363 (1995). 

< An election may be necessary after a 

reorganization when more than one labor organization 

represents employees transferred into one new unit. 

Social Security Administration, District Office, Valdosta, 

Georgia, 52 FLRA 1084, 1091 (1997), and Defense Supply 

Center Columbus, 53 FLRA 1114, 1134 at (1998) citing 

Martin Marietta Co, 270 NLRB 821 (1984) and Boston Gas 

Company, 221 NLRB 628, 629 n.5.(1975). 

< But see AMCOM II, 56 FLRA 126, 131 (2000) 
18

where an election was not ordered because one union was 

sufficiently predominant and the Authority stated that: “we 

take as a guiding principle for determining whether one 

group is sufficiently predominant to render an election 

unnecessary whether there is a reasonable assurance of a 

meaningful contest” citing Coast Guard, 34 FLRA 946, 949 

(1990). The Authority found that a union that represents 

more than 70% of the employees in the newly combined 

unit formerly represented by two or more unions is 

sufficiently predominant to render an election unnecessary 

because such an election would be a useless exercise. 

When all three factors set forth above are met, the Authority will 

find that successorship exists and as a result, the agency/activity 

involved must recognize the exclusive representative of the 

employees in the unit without a new, secret ballot election. 

 4. Competing claims of successorship: 

In USN, 56 FLRA 328, 332-333 (2000), the Authority discussed 

how it would resolve competing claims of successorship. The 

Authority stated that there is a preference in the Statute for 

preventing unit fragmentation when an existing unit otherwise 

remains appropriate. See U.S. Department of the Air Force, Air 

Force Materiel Command, Wright-Patterson Air Force Base, Ohio

(AFMC), 55 FLRA 359, 361 (1999). See also Library of Congress 

and Fraternal Order of Police, Library of Congress Police Force 

Labor Committee (Library of Congress), 16 FLRA 429, 431 (1984). 

Consistent with this statutory preference, the Authority held that 

successorship claims should be resolved prior to accretion claims 

because a finding of successorship permits a union to retain its 

status as the employees' chosen, exclusive representative, rather 

than altering the relationship between the employees and their 

chosen representative by placing the employees in a different unit. 

See FISC, Norfolk, 52 FLRA 950, 954 (1997). 

Consistent with these policies, the Authority held that, when 

presented with competing successorship claims alleging different 

appropriate units, they first consider the appropriate unit claim that 
Office of the General Counsel 

Representation Case Law Guide October 2000 

will most fully preserve the status quo in terms of unit structure and 

the relationship of employees to their chosen exclusive 

representative. If the Authority finds that a petitioned-for, existing 

unit continues to be appropriate, then they will not address any 

petitions that attempt to establish different unit structures, because 

the Statute requires only that a proposed unit be an appropriate 

unit, not the most, or the only, appropriate unit. See Department of 

the Navy, Naval Supply Center, Puget Sound, Bremerton, 

Washington and Department of the Navy, Fleet Industrial Supply 

Center, Bremerton, Washington (FISC, Bremerton), 53 FLRA 173 

at 183, n.9 (1997). 
20

See HOG 39B for specific guidance on developing a record 

about successorship at hearing.
Office of the General Counsel 

Representation Case Law Guide October 2000 

C. Accretion .

Accretion involves the addition, without an election, of a group of 

employees to an existing bargaining unit. Accretion issues most 

frequently arise as a result of a reorganization or realignment of 

agency operations. Department of the Navy, Naval Hospital, 

Submarine Base Bangor Clinic, Bremerton, Washington, 15 FLRA 

125 (1984). The employees at issue in an accretion case may 

come from another established organizational entity (i.e., agency or 

activity or subdivision thereof) or may be a newly established 

category of employees that do not fall within the express language 

of the current unit description. Accretion also may arise as an 

issue in an election case if a party contends that the employees 

subject to the petition have accreted to an existing unit. See 

Department of the Air Force, 6th Missile Warning Squadron, Otis 

Air Force Base, 3 FLRA 112 (1980). 

To find accretion, the acquired employees:

< are not in newly created positions that fall within the 

express language of the unit description. Department of 

the Army, Headquarters, Fort Dix, Fort Dix, New Jersey 

(Fort Dix), 53 FRA 287 (1997). See RCL 15.

< do not constitute an appropriate separate bargaining unit 

on their own. 
22

< become functionally and administratively integrated 

into the gaining organization’s pre-existing unit(s), and that 

adding the transferred employees to the unit(s) would be 

appropriate under section 7112(a) of the Statute in that the 

employees in the resulting unit share a community of 

interest with employees in the established unit and the 

resulting unit promotes effective dealings with and 

efficiency of operations of the agency. U.S. Department of 

Energy, Oak Ridge Operations Office, Oak Ridge, 

Tennessee (DOE Oak Ridge), 15 FLRA 130 (1984) (no 

accretion found). Compare, Department of the Navy, 

Naval Hospital, Submarine Base Bangor Clinic, Bremerton, 

Washington, 15 FLRA 125 (1984) (employees 

administratively transferred along with their function into a 

different activity were accreted into an existing bargaining 

unit, as requested by the gaining activity and the labor 

organization exclusively representing that activity's 

employees, inasmuch as the inclusion of such employees 

in the established bargaining unit satisfied the three criteria 

of section 7112(a) of the Statute). AMCOM II, 56 FLRA 

126. 

A finding of accretion forecloses an employee’s basic right to select 

an exclusive representative. Therefore, any accretion issues must 

be carefully considered. Accretion will not be found in a 

reorganization case in which the employees sought to be added to 

the existing unit continue to maintain a separate and distinct 

identity and have not been functionally, operationally or physically 

integrated into the existing unit. See DOE Oak Ridge; Naval Air 

Station, Meridian, Michigan, 9 FLRA 22 (1982); General Services 

Administration, National Capital Region, 5 FLRA 285 (1981). 

The Office of the General Counsel has established the 

following guidelines for processing cases involving accretion 

issues:

1. The first step is to determine whether the acquired 

employees constitute a separate appropriate unit. The 

following factors are considered:
Office of the General Counsel 

Representation Case Law Guide October 2000 

a. whether the acquired employees have a clear and 

identifiable community of interest separate and 

distinct from other employees; 

b. whether the acquired employees have been 

functionally and administratively integrated with 

other employees in the existing bargaining unit 

such that they do not have a clear and identifiable

separate community of interest; 

c. whether proposed unit configurations would 

promote effective dealings and efficiency of 

operations; and 

d. whether a separate unit would result in 

fragmentation of units. 

 2. If the investigation establishes that the acquired 

employees constitute a separate appropriate unit, the 

region decides: 

a. in a reorganization, whether the new employer is a 

successor for purposes of collective bargaining 

with the labor organization that represented these 

employees at the predecessor. 

b. if no reorganization, and the issue concerns 

whether a newly established office, clinic or other

organization is an accretion to an existing unit, 

whether the unit is appropriate as a separate stand

alone unit. 

< If yes - in a reorganization case, the region applies 

the successorship criteria and if it finds successorship, 

issues an appropriate certification. For guidance on 

successorship, see RCL 3B and NFECS, 50 FLRA 363, 

n.7 and n.11 (1995). See also CHM 23.7. 
24

< If yes - in a newly established organization 

scenario, the petition is dismissed and the union is required 

to refile the petition with an adequate showing of interest. 

< If yes, but there are competing claims for 

representation, the region decides whether combining the 

subject employees with the employees in the existing unit 

would result in an overall appropriate unit. 

• If yes, the processing an election 

under these circumstances is novel particularly 

whether a self-determination election is warranted. 

See U.S. Department of Labor, Pension and 

Welfare Benefits Administration, 38 FLRA 65, 73 

(1990); NFESC, 50 FLRA 363, 364 n.11, citing

Melbet Jewelry Co., 180 NLRB 107, 110 (1969). 

See CHM 58.3.17.

• If no, dismiss - requirement to file 

petition with a showing of interest for an election. 

The acquired employees constitute a separate 

appropriate unit, but successorship is not 

warranted (either because the employees were 

previously unrepresented or the unit did not meet 

the successorship criteria). Moreover, the 

acquired employees do not share a sufficient 

community of interest to be included in the existing 

unit. In such cases, the petition would be 

dismissed. The only way a labor organization could 

represent these employees is through a petition 

seeking an election. The petition must be 

accompanied by a showing of interest. 

 3. If the investigation establishes that the acquired or 

subject employees do not constitute a separate 

appropriate unit, the region decides whether it is 

appropriate to accrete these employees into the 

existing unit.
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Representation Case Law Guide October 2000 

< If yes - clarify existing unit to include acquired

employees. 

If the acquired employees are functionally and 

administratively integrated into the existing unit and adding 

the acquired employees to the existing unit results in an 

appropriate unit under section 7112(a), an accretion may 

be found. If accretion is found, the unit is clarified to 

include the accreted employees. FISC, Norfolk,, 52 FLRA 

at 963. 

< If no - dismiss. 

There may be situations where neither an accretion nor a 

separate unit is appropriate. In this case the petition is 

dismissed. Headquarters, XVIII Airborne Corps and Fort 

Bragg, Fort Bragg, North Carolina, 36 FLRA 237 (1990). 

 4. Considerations in Reorganizations Where Accretion is 

Claimed: 

A significant consideration in a petition asserting accretion based 

on reorganization is the timing of the petition. Parties may file 

accretion petitions in anticipation of future changes, which could 

result in unit determinations based on speculation as to the impact 

of changes. On the other hand, delay in deciding accretion 

questions until all organizational changes have occurred may place 

the representational status of affected employees in limbo during 

the interim, another undesirable result. The standard to apply in 

determining whether the accretion petition has been filed at an 

appropriate time for making a decision in the matter is the 

“substantial and representative complement” test. See NFESC, 50 

at 372, fn 9, which applied the “substantial and representative 

complement” test to successorship situations. (See, RCL 2 - 

Scope of Unit, for discussion of expanding units). 

Another issue in an accretion case is “numerical overshadowing,” 
26

that is, whether there are more employees in the acquired group of 

employees than in the existing unit. Accretion is not found if the 

numbers of acquired employees exceeds the number of employees 

in the existing unit. See DHHS, 43 FLRA 1245 (1992); Air Force 

Material Command, 47 FLRA 602 (1993) citing Renaissance 

Center Partnership, 239 NLRB 1247 (1979). In Department of the 

Interior, Bureau of Land Management, Sacramento, California, and 

Department of the Interior, Bureau of Land Management, Ukiah 

District Office, Ukiah, California, 53 FLRA 1417, 1422 (1998) the 

Authority stated that it “will continue to apply the majority standard 

in accretion cases involving groups of represented and 

unrepresented employees. Accordingly, to the extent the Authority 

previously stated that the ‘nearly equals or exceeds’ standard 

applies in accretion cases, those cases will no longer be followed.” 

5. Previously Excluded Employees: 

Accretion is not found in circumstances where the petitioner seeks 

to include in an existing unit a group or category of employees who 

were specifically excluded from that unit, unless the evidence 

establishes that meaningful changes have occurred in the 

employment status of the previously excluded group. If no such 

changes have occurred, then election procedures are required to 

add the group of employees to the existing unit. FTC II, 35 FLRA 

576 (1990). See also RCL 2 - Scope of Units, Residual Units. 

6. Questions have been raised concerning the 

differences between accretion and successorship in 

reorganization cases. 

Essentially, accretion concerns the status of a group of employees 

while successorship concerns the status of a bargaining 

relationship between an agency/activity which acquires employees 

who were in a previously existing bargaining unit and a labor 

organization that exclusively represented those employees prior to 

their transfer. Reorganizations often raise both accretion and 

successorship issues because the impact of what happened is not 

immediately clear on the unit structure. It is important to find out 

what happened to the employees and determine how the 
Office of the General Counsel 

Representation Case Law Guide October 2000 

reorganization affected their conditions of employment. Once 

information is gathered, the factors of accretion and successorship 

can be applied and analyzed. It is not possible to have both an 

accretion and a successorship involving the same employees. 

See HOG 39C for specific guidance on developing a record 

about accretion at hearing.

Other References:

 Headquarters, 97th U.S. Army Reserve Command, Fort

George G. Meade, Maryland, 32 FLRA 567 (1988). 

 Department of the Air Force, 6th Missile Warning 

Squadron, Otis Air Force Base, 3 FLRA 112 (1980) 

AMCOM II, 56 FLRA 126 (2000)

U.S. Department of the Air Force, Air Force Material Command, 

Wright-Patterson Air Force Base, Ohio, 47 FLRA 602 (1993)
28

D. Competing Claims of Successorship and Accretion. 

FISC, Norfolk, 52 FLRA 950 (1997) involved the Department of the 

Navy’s decision to consolidate and reorganize its purchasing and 

supply functions, and the resultant representation petitions that 

were filed in this case, presented the Authority with an 

opportunity to clarify how it will analyze reorganization cases 

in which both successorship principles and accretion 

principles are claimed to apply to the same employees. 

1. Overview:

The Authority found that the most expeditious way to resolve such 

cases is to begin with a determination of whether the transferred 

employees are included in, and constitute a majority of employees 

in, a separate appropriate unit in the new employing entity. The 

first analytic step in resolving both successorship and accretion 

claims is to determine whether the transferred employees are 

included in, and constitute a majority of employees in a separate 

appropriate unit. 

Once this determination has been made, the Authority will proceed 

to apply either the remaining successorship principles, or the 

remaining accretion principles, as appropriate. 

2. Analytic framework adopted by the Authority:

a. When resolving cases arising from a reorganization where 

employees are transferred to a pre-existing or newly 

established organization and both successorship and

accretion principles are claimed to apply, the Authority 

adopted the following framework: 

1) Initially, the Authority determines whether 

employees who have been transferred are 

included in, and constitute a majority of, a separate 

appropriate unit(s) in the gaining organization 

under section 7112(a) of the statute. The outcome 

of this inquiry governs whether successorship or 
Office of the General Counsel 

Representation Case Law Guide October 2000 

accretion principles are next applied. 

2) If it is determined that the transferred employees 

are included in a separate appropriate unit(s) in the 

gaining organization under section 7112(a), and if 

they constitute a majority of the employees in that

unit(s), the Authority applies the remainder of the 

successorship factors set forth in NFESC, 50 

FLRA 363, with respect to the units(s) determined 

to be appropriate. The outcome of the NFESC

analysis determines whether the gaining 

organization is a successor for purposes of 

collective bargaining with the labor organization(s) 

that represented the transferred employees at their

previous employer. 

3) If it is determined that the transferred employees 

are not included in, and constitute a majority of 

employees in, a separate appropriate unit in the 

gaining organization, the Authority applies its longestablished accretion principles. The outcome of 

this analysis determines whether the transferred 

employees have accreted to a pre-existing unit in 

the gaining organization. 

b. Explanation of the framework: 

1) Determine whether the transferred employees are 

included in a separate appropriate unit: 

(a) The Authority first examines whether the 

transferred employees are included in a 

separate appropriate unit in the gaining 

organization and if they constitute a 

majority of the employees in that unit. This 

step of the analysis corresponds to the first 

factor set forth in NFESC which requires, 

inter alia, that “the post-transfer unit must 

be appropriate.” For a discussion of the 
30

factors required in making appropriate unit 

determinations, see RCL 1 and Part A of 

this chapter discussing in detail FISC, 

Norfolk, 52 FLRA 950, See also FISC, 

Norfolk at 961, n.6. 

(b) The Authority stated that the application of 

the appropriate unit criteria to the facts of 

each case will determine the 

appropriateness of any proposed unit. If it 

finds that the transferred employees are 

included in, and constitute a majority of the 

employees in, a separate appropriate unit 

in the gaining organization, the Authority 

will proceed to determine whether the 

remaining successorship factors set forth 

in NFESC have been met. 

Alternatively, if the Authority finds that the 

transferred employees are not included in, 

and constitute a majority of the employees 

in, a separate appropriate unit, the 

Authority will proceed to determine 

whether the transferred employees have 

accreted to another bargaining unit, as 

claimed. 

2) If the transferred employees are included in, and 

constitute a majority of the employees in, a 

separate appropriate unit in the gaining 

organization, apply the remaining successorship 

factors. 

(a) Examine the following: 

< whether the gaining 

organization has substantially the 

same organizational mission as 

the losing entity, with the 
Office of the General Counsel 

Representation Case Law Guide October 2000 

transferred employees performing 

substantially the same duties and 

functions under substantially 

similar working conditions after the 

transfer; and 

< whether an election is 

necessary to determine the 

representation rights of the 

transferred employees. 

(b) If all of the factors set forth in NFESC have 

been met, the Authority finds that 

successorship exists and, as a result, that 

the gaining organization must recognize, 

without a secret ballot election, the 

exclusive representative of the transferred 

employees prior to their transfer. An 

appropriate certification is issued and any 

competing accretion petition(s) for the 

same group of employees is dismissed. 

3) If successorship is not appropriate, consider 

accretion claims. First, consider: 

(a) Whether the transferred employees are 

functionally and administratively integrated 

into the gaining organization’s pre-existing 

unit(s); and 

(b) Whether adding the transferred employees 

to the unit(s) would be appropriate under 

section 7112(a). 

(c) If both tests are met, accretion will be 

found. 

The Authority reiterated that in deciding questions of 

accretion, it is bound by the three criteria for determining 

the appropriateness of any unit set forth in section 7112(a) 
32

of the Statute. 

c. Impact of imminent reorganizations: 

One of the issues raised in FISC, Norfolk was the impact of 

any imminent reorganization have on the bargaining units 

whose status is an issue. The Authority cited DPRO 

Thiokol, 41 FLRA 316, at 327: decisions regarding unit 

determinations must reflect the conditions of employment 

that existed at the time of the hearing rather than what may 

exist in the future, unless there are definite and imminent 

changes planned by the agency. 

d. Quality of the record: 

The quality of the record is vitally important. FISC, 

Norfolk, and FISC, Bremerton, 53 FLRA 173, presented 

the same issues. The decisions in these two cases were 

different. In FISC, Norfolk, the Regional Director affirmed 

the Authority’s finding of accretion. In FISC, Bremerton, 

53 FLRA 173 (1997), the Authority affirmed the Regional 

Director’s finding that FISC, Concord Detachment was a 

successor employer to the Concord Naval Weapons 

Station (NWS Concord) for an appropriate unit of 

employees transferred from NWS Concord to the newly

established FISC, Concord Detachment. The Regional

Director, as affirmed by the Authority, based his decision 

on different facts in the record. 

E. Consolidated Units : 

When applying the appropriate unit criteria to a 

successorship/accretion situation that involves a consolidated 

bargaining unit, the criteria are applied with respect to the entire 

nationwide consolidated unit. The Region does not apply the 

criteria to any organizational segment (or former unit encompassed 

within the consolidated unit) below the level of exclusive 

recognition. Thus, successorship and accretion issues are not 

considered below the level of exclusive recognition. Compare
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Representation Case Law Guide October 2000 

Social Security Administration, District Office, Valdosta, Georgia

(SSA, Valdosta), 52 FLRA 1084 (1997). 
34

F. Unresolved Issues :

Since the Authority in AMCOM II, 56 FLRA 126 (2000) found prong 

two of the successorship criteria (substantially same organization 

mission, duties and working conditions) to be met, it was 

unnecessary to address whether the new ”sufficiently predominate” 

standard would be applicable to “merger” situations where the 

second successorship prong has not been satisfied. This issue 

continues to remain unresolved. 

NOTE: In three cases that the Authority considered in the past 

three years, issues of a question concerning representation were 

raised in the context of reorganizations. The issue outlined above 

has not yet been resolved based on the facts of the case as 

analyzed using the FISC, Norfolk framework. In SSA, Valdosta, 52 

FLRA 1084, 1090, the Authority stated that it and the NLRB have 

found that an election would be necessary to determine 

representation after a reorganization or consolidation when the 

number of unrepresented employees in the gaining entity exceeds 

the number of represented employees [citing HHS, Region II, 43 

FLRA 1245 (1992) and Renaissance Center Partnership, 239 

NLRB 1247 (1979)]. The Authority also noted that the NLRB found 

an election necessary after a reorganization when more than one 

labor organization represents employees transferred into one new 

unit. Martin Marietta Co., 270 NLRB 821 (1984) in which the NLRB 

said: 

When an employer merges two groups of 

employees who have been historically represented 

by different unions, a question concerning 

representation arises, and the Board will not 

impose a union by applying its accretion policy 

where neither group of employees is sufficiently 

predominant to remove the question concerning 

representation. 

In DLA, Columbus, 53 FLRA 1114, the Authority stated: “In the 

context of an agency realignment of functions, the Authority has 
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Representation Case Law Guide October 2000 

ordered an election where the employees at issue could be part of 

two petitioned-for appropriate units,” citing DLA, Akron, 15 FLRA 

962 (1984). As the Authority held in DLA, Akron, where “the 

considerations in favor of each [unit] are evenly balanced, the 

determining factor should be the desires of the employees 

themselves.” Id. at 966. 

In addition the Authority reiterated that an election may be 

necessary where, as here, more than one labor organization 

represents employees transferred into the new unit. See SSA, 

Valdosta, 52 FLRA at 1091. The Authority also cited supporting 

NLRB case law where it found an election necessary after a 

reorganization or corporate merger where more than one labor 

organization has represented employees in the new unit and 

neither group is sufficiently predominant (emphasis added) to 

remove the question of overall representation. Seven-Up. 281 

NLRB 943 at 946 (1986); Boston Gas Company, 221 NLRB 628, 

629 n.5 (1975). On the other hand, the Authority noted NLRB case 

law that said that it will not direct an election where it would be a 

useless exercise or prejudicial to the dominant group. (citing the 

same cases). 

The Authority had an opportunity in its Order Granting Application 

for Review and Denying Stay of Election in Department of the 

Army, U.S. Army Aviation Missile Command, Redstone Arsenal, 

Alabama (AMCOM I), 55 FLRA 640 (1999), to consider when an 

election is necessary where a reorganization has rendered 

inappropriate separate, preexisting bargaining units inappropriate. 

However, as noted, it found prong 2 of the successorship criteria 

met and created a standard for finding unions sufficiently 

predominant in that context. When successorship issues involve 

more than one union, regions should be attentive to any cases 

in which prong 2 of the successorship criteria is not met. See 

CHM 58.3.18. 

Office of the General Counsel 

Representation Case Law Guide October 2000 

1

4 Issues related to the majority status of the currently 

recognized or certified labor organization and/or defunctness

Section 7111(b)(2) of the Statute permits the filing of a petition 

seeking clarification of, or an amendment to, a certification then in 

effect or a matter relating to representation. Based on current 

Authority case law, three types of petitions may be filed under this 

section that raise issues related to the majority status of the 

currently recognized or certified labor organization: 

1. petitions questioning the continued majority status of the 

recognized or certified labor organization which are 

generally filed by agencies; 

2. petitions filed by an exclusive representative to amend its 

certification in which the investigation raises a reasonable 

cause to believe a question of representation (QCR) or 

defunctness exists; and 

3. questions of defunctness of the exclusive representative 

which is an interrelated, but not identical, concept. 

In the three scenarios, section 7111(b)(2) provides, in relevant part, 

that if a petition is filed with the Authority: 

by any person seeking . . . an amendment to, a 

certification then in effect or a matter relating to 

representation; the Authority shall investigate the

petition, and if it has reasonable cause to believe

that a question of representation exists, it shall 

provide an opportunity for a hearing (for which a 

transcript shall be kept) after a reasonable notice. 

If the Authority finds on the record of the hearing

that a question of representation exists, the 

Authority shall supervise or conduct an election on

the question by secret ballot and shall certify the

results thereof. . . . 
2

The Authority stated in U.S. Department of the Interior, Bureau of 

Land Management, Phoenix, Arizona (BLM), 56 FLRA 202, 206 

(2000) that “[c]onsistent with the plain wording of this section, if in 

investigating a petition to amend a certification there is reasonable 

cause to believe that a QCR exists, then an opportunity for a 

hearing on the matter ‘shall’ be provided. This statutory 

requirement is not discretionary and does not depend on the type 

of petition filed. Rather, it depends on whether there is reasonable 

cause to believe that a QCR exists. The Authority noted, in this 

respect, that § 2422.1 of the regulations provides for only one type 

of petition. 

Petitions that raise majority status issues that are filed by a labor 

organization that is not a party to the exclusive bargaining 

relationship and are not accompanied by a thirty percent showing 

of interest are set for hearing as to the standing of the petitioner to 

file such a petition (see CHM 23.9.2). 

A. Timeliness considerations : Absent unusual circumstances, a 

petition challenging the majority status of an exclusive 

representative must be filed in accordance with the timeliness 

requirements of the Statute and regulations. See Department of 

State, Bureau of Consular Affairs, Passport Services, 35 FLRA 

1163 (1990); RCL 11 - Timeliness. Examples of unusual 

circumstances are when a union is defunct or in a situation in which 

the petitioner seeks to amend its own certification due to a change 

in affiliation or merger (RCL 7). 

B. Good faith doubt as to union’s continued majority status : A 

party filing a petition asserting a good faith doubt as to the 

continuing majority status of an exclusive representative is not 

required to prove that an actual numerical majority of employees 

opposes the union. Rather, the party must demonstrate objective 

considerations sufficient to support a conclusion that a reasonable 

doubt exists that a union continues to represent a majority of 

employees in an existing unit. The factors asserted to support a 

good faith doubt as to majority status must be viewed both in their 

context and in combination with each other, in determining whether 

such doubt is warranted. Overseas Private Investment Corporation
Office of the General Counsel 

Representation Case Law Guide October 2000 

3

(OPIC), 36 FLRA 480, 484-85 (1990). The Authority does not 

determine whether the union continues to be the exclusive 

representative of employees; that determination is made by the 

employees themselves through the election process. The Authority 

determines whether, based upon objective considerations, a good 

faith doubt exists that the union continues to represent a majority of 

employees. If so, an election is conducted to determine the 

exclusive representative, if any, in the unit. 

Objective considerations sufficient to support a conclusion that a 

reasonable doubt exists are, for example: 

< lack of officers or representatives of a union; 

< lack of a collective bargaining agreement; 

< lack of demands to bargain in response to management 

proposed changes; 

< few employees on automatic dues withholding; 

< long periods of dormancy by the union, etc. 

See Department of the Interior, National Park Service, Western 

Regional Office, San Francisco, California, 10 FLRA 502 (1982); 

Department of the Interior, National Park Service, Western 

Regional Office, San Francisco, California, 15 FLRA 338 (1984); 

and OPIC. An incumbent’s attempt to revive itself once the petition 

had been filed asserting a good faith doubt of continued majority 

status does not overcome the good faith doubt as to continued 

majority status. OPIC. 

C. Petition to amend a certification : Generally, such petitions are 

filed when the exclusive representative seeks to change its 

affiliation or merge with another union pursuant to the Montrose

requirements discussed at RCL 7. The number of union members 

in the bargaining unit compared with the total number of employees 

in the bargaining unit may raise a question concerning 
4

representation which the Region investigates by following the 

outline discussed below. If the Regional Director determines that 

there is reasonable cause to believe that a QCR exists, an 

opportunity for a hearing is provided. If on the record of the 

hearing, it is determined that a QCR exists, the Regional Director 

supervises or conducts an election on the question, as appropriate. 

If the Regional Director finds there is no reasonable cause to 

believe that a QCR exists with respect to the unit, the Regional 

Director, based on record facts, dismisses the petition or grants the 

amendment. BLM, 56 FLRA at 206. 

An unresolved issue is whether all of the factors discussed in OPIC

must be present in order for a QCR to be present in this type of 

petition as well. In OPIC, the Authority stated that “[w]hile a low 

level of membership, standing alone, would not support a doubt as 

to majority status, neither does it contribute to overcoming the 

doubt that reasonably results from a lengthy period of virtually total 

inactivity.” OPIC, 36 FLRA at 486. 

 

D. Defunctness : The exclusive representative is held to be defunct 

when it is either unwilling or unable to represent employees. If it is 

determined that the union is defunct and has ceased to represent 

employees, this represents an unusual circumstance warranting 

the filing of a petition at any time, without regard to the timeliness 

requirements of the Statute. Further, if the union is held to be 

defunct, the petition does not necessarily result in an election 

among the affected employees. In the absence of intervenors in 

the representation case, granting a petition asserting defunctness 

results in a finding, without conducting an election, that there is no 

exclusive representative in the unit. See Duluth International 

Airport, 4787th Air Base Group, Duluth, Minnesota, 15 FLRA 858 

(1984). 

See HOG 40 for specific guidance on developing a record 

about this topic at hearing.

Other references:
Office of the General Counsel 

Representation Case Law Guide October 2000 

5

 Celanese Corp., 95 NLRB 664 (1951); Thomas Industries, Inc. v. 

NLRB, 687 F.2d 863, 868 (6th Cir. 1982); Dalewood Rehabilitation 

Hospital, Inc. v. NLRB, 566 F.2d 77, 80 (9th Cir. 1977) cited in 

OPIC.

Department of State, Bureau of Consular Affairs, Passport 

Services, 35 FLRA 1163 (1990). 

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Representation Case Law Guide October 2000 

1

5 (Reserved) 
2
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Representation Case Law Guide October 2000 

1

6 Dues allotment

A labor organization may be granted certification for the limited 

purpose of negotiating an agreement for dues allotment under 

section 7115(c) of the Statute, which provides: 

 (1) Subject to paragraph (2) of this 

subsection, if a petition has been filed with the 

Authority by a labor organization alleging that 10 

percent of the employees in an appropriate unit in 

an agency have membership in a labor 

organization, the Authority shall investigate the 

petition to determine its validity. Upon certification 

by the Authority of the validity of the petition, the 

agency shall have a duty to negotiate with the 

labor organization solely concerning the deduction 

of dues of the labor organization from the pay of 

the members of the labor organization who are 

employees in the unit and who make a voluntary 

allotment for such purpose. 

 (2) 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. 

 Standard: To certify a union for dues allotment, the union is 

required to file a petition with a Regional Office that includes the 

following criteria: 

a) the petition seeks certification for dues allotment 

for a unit for which there is no exclusive 

representative; 

b) the claimed unit is appropriate for exclusive recognition; 

and 

 c) the petitioner provides a showing of membership of not 

less than 10 percent (10%) in the unit claimed to be 
2

appropriate. 

 Application of standard: Any appropriate unit determination for 

the purposes of dues allotment petitions must be consistent with 

the criteria of section 7112(a) of the Statute. Defense Industrial 

Plant Equipment Center, Memphis Tennessee, 31 FLRA 1105 

(1988). Other issues in dues allotment cases include: 

< Any dues withholding agreement negotiated between a labor 

organization and an agency pursuant to a dues allotment 

certification becomes null and void upon the certification of an 

exclusive representative of the unit. See 5 U.S.C. 7115(c)(2)(B). 

< The fact that a union loses an election for exclusive representation 

does not, in and of itself, invalidate the prior evidence of 

membership for the purpose of a dues allotment petition. An issue 

may be raised if the Activity offers independent evidence to support 

a claim that the union’s 10% showing of membership is no longer 

valid. Area Maintenance Support Activities, 86th Army Reserve 

Command, Forest Park, Illinois, 32 FLRA 822 (1988). 

< Determining the adequacy of evidence of membership is handled 

similarly to other petitions requiring a showing of interest. The 

Regional Director administratively determines adequacy of the 

evidence submitted and a determination that the evidence is 

adequate is not subject to collateral attack at a hearing or on 

appeal to the Authority. See §2422.9 and CHM 18.3. 

See HOG 42 for specific guidance on developing a record 

about this topic at hearing.
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Representation Case Law Guide October 2000 

1

7 Changes in the name of the certified or recognized exclusive 

representative 

This section discusses the concepts and procedures for processing 

petitions to amend a certification or recognition due to changes in 

the name of the certified or recognized labor organization. Such 

changes fall within two categories: 

A. Technical or nominal changes :

These changes occur when the union merely seeks a technical or 

nominal change in its certification due to a clerical or administrative 

error. See National Aeronautics and Space Administration, 

Headquarters, Administrative Division, 12 FLRA 152 (1983)

(granted a name change for the exclusive representative - no 

discussion of Montrose factors). 

In Naval Aviation Depot, Naval Air Station, Alameda, California 

(NAS Alameda), 47 FLRA 242 (1993), the Authority granted the 

Activity’s petition to change the name of the Activity, but denied the 

Union’s request to amend the certification to reflect a change in the 

local designation within the same international union. The 

Authority stated: “in order to amend the certification issued by the 

Authority to reflect a change in the designation of the exclusive 

representative for the bargaining unit in this case from IAM 

Lodge 739 to IAM Lodge 1584, it was necessary to follow the 

procedures required by Montrose.” The Authority cited Florida 

National Guard, St. Augustine, Florida (FNG II), 34 FLRA 223 

(1990) ; and Florida National Guard (FNG I), 25 FLRA 728 (1987). 

In FNG I, the Authority applied the Montrose procedures where two 

locals within the same national union merged, and in Florida 

National Guard II, the Authority applied the Montrose procedures 

where, as here, two locals within the same international union 

merged. The Authority stated in NAS Alameda that: “[I]n this case, 

it has not been demonstrated that the merger conforms to the 

wishes of the membership of IAM Lodge 739, the certified 

exclusive representative of the Activity's employees.” NAS 

Alameda at 245, 246. 
2

The Regions should look out for any petition where the petitioner 

seeks to effect a change in affiliation from one local union to 

another local union of the same national or international union, but 

the Montrose criteria have not been met. More clarification on this 

issue from the Authority may be helpful. See CHM 58.3.19.

B. Montrose: changes in affiliation or mergers of labor 

organizations : 

When a petitioner seeks amendment to reflect a change in 

affiliation resulting from either a reaffiliation or a merger of unions, 

two conditions must be met. These two conditions were first 

described in Veterans Administration Hospital, Montrose, New York

(Montrose), 4 A/SLMR 858 (1974). The Authority specifically

adopted Montrose in Florida National Guard, St. Augustine, Florida

(FNG I), 25 FLRA 728 (1987). 

Montrose cases are distinguished from cases in which the union 

merely seeks a technical or nominal change in its certification due 

to a clerical or administrative error. However, a simple change in 

the numerical designation of a local is subject to the Montrose 

requirements unless the union can show the change was purely 

technical. 

The two conditions that must be met to determine whether the 

designation of the exclusive representative of a recognized or 

certified unit may be amended are: 

 1. Due Process: Montrose sets out specific procedures to 

ensure that union members have an adequate opportunity 

to vote on the change. These are: 

< the proposed change in affiliation is the subject of a special 

meeting of the members of the incumbent labor organization, called 

for this purpose only, with adequate advance notice provided to the 

entire membership; 

< the meeting takes place at a time and place convenient to all 

members; 
Office of the General Counsel 

Representation Case Law Guide October 2000 

< adequate time for discussion of the proposed change was 

provided, with all members given an opportunity to raise questions 

within the bounds of normal parliamentary procedures; and 

< a vote by the members of the incumbent labor organization was 

taken by secret ballot, with the ballot clearly stating the change 

proposed and the choices inherent therein. 

 2. Continuity of Representation: Any change in an 

affiliation may not affect the continuity of the unit 

employees' representation and clearly does not leave open 

questions concerning such representation. See Montrose, 

4 A/SLMR 858, 860. The Authority has not identified the 

specific factors or number of factors it will consider in 

deciding this issue. However, elements to weigh include: 

< continuity of officers or representatives, 

< local autonomy and control of day-to-day operations, and 

< whether the gaining union has agreed to administer the existing 

contract. U.S. Department of the Army, Rock Island Arsenal, Rock 

Island, Illinois (Rock Island), 46 FLRA 76 (1992) citing NLRB v. 

Financial Institution of Employees of America, Local 1182 

(Financial Institution), 475 U.S. 192 (1986). 

Financial Institution included a discussion concerning the difference 

between affiliation and other organizational changes that alter a 

union’s “identity.” The discussion may be helpful in cases where 

there is an issue related to continuity of unit employees’ 

representation. The Court appeared to limit the review to identifying 

organizational changes, rather than the motivation behind such 

changes. The Supreme Court noted that the Board recognized that 

“an affiliation does not create a new organization, nor does it result 

in the dissolution of an already existing organization.” The Court 

noted that in a change of affiliation, the union will determine 

“whether any administrative or organizational changes are 
4

necessary in the affiliating organization. If the changes are 

sufficiently dramatic to alter the union’s identity, affiliation may raise 

a question of representation.” Financial Institution, at 206. 

 3. Examples of changes in affiliation: There are various 

types of changes in affiliation which may involve 

application of Montrose. For example, two national unions 

may merge or two or more locals of a national union may 

merge. A local union affiliated with one national union may 

reaffiliate with another national union. A local union may 

become a new independent union. A local union may split 

into two or more affiliates of a national union. 

4. Application of Standards: The Authority applies the 

Montrose standards on a case-by-case, unit-by-unit basis 

and has considered virtually every aspect of each 

standard. 

< Any petitions that seek to amend a recognition or certification as a 

result of reaffiliation or merger must follow the procedures 

established in Montrose. These procedures were designed to 

ensure that an amendment of certification of “an exclusive 

representative in an existing unit” conforms to the desires of the 

membership of that unit. U.S. Department of the Interior, Bureau of 

Land Management, Phoenix, Arizona (BLM), 56 FLRA 202 (2000) 

citing Rock Island, 46 FLRA at 79. A union which has recognition 

or certification for several units may reaffiliate with another union, 

but the Montrose due process standards are applied on a unit 

specific basis and the continuity of representation is assessed for 

each separate unit. For instance, specific information is obtained 

regarding the union’s membership in each unit for which the union 

seeks to amend the recognition or certification. 

< A change in affiliation vote must be open to all union members in 

the affected unit, not to all members of the bargaining unit. Bureau 

of Indian Affairs, Gallup, New Mexico, 34 FLRA 428 (1990); 

Financial Institution, 475 U.S. 192 (1986).
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Representation Case Law Guide October 2000 

< A change in affiliation may not be used to change the scope of the 

existing bargaining unit. Thus, Montrose procedures may not be 

used to sever a group of employees from an existing bargaining 

unit or to extend recognition to a category of previously 

unrepresented employees. Further, a petition to reflect a change in 

affiliation may not be used to and, if granted, does not result in 

consolidation of bargaining units. Florida National Guard, St. 

Augustine, Florida (FNG II), 34 FLRA 223 (1990). 

< Montrose does not apply to a change in affiliation involving a labor 

organization other than an exclusive representative. U.S. 

Department of Defense, National Guard Bureau, Division of Military 

and Naval Affairs, Latham, New York, 46 FLRA 1468 (1993). 

< The notice of the special meeting must clearly and adequately 

inform employees of the nature of the proposed change. See

Union of Federal Employees (UFE), 41 FLRA 562 (1991), but 

compare U.S. Department of the Interior, Bureau of Indian Affairs, 

Gallup, New Mexico, 33 FLRA 482 (1988), 34 FLRA 428 (1990), 

and 35 FLRA 99 (1990) [BIA I, II, and III, respectively] in which no 

special meeting was required in the unusual circumstances 

present. The Authority determined where geographic dispersion 

precludes a special meeting of all of the members of the bargaining 

unit, a mail ballot may be substituted. 

< The certified exclusive representative is not required to notify the 

national labor organization of a disaffiliation vote. New Mexico 

Army and Air National Guard (New Mexico AANG), 56 FLRA 145, 

149 (2000). 

< There is no requirement that any specific number or percentage of 

members must cast ballots in order for an affiliation change to be 

effective. See Rock Island, 46 FLRA 76 (1992). There must be 

union members in the unit and the members must have been sent 

notice of the meeting. UFE, at 574. 

< Where there are no members of the union in the bargaining unit, a 

Montrose is not appropriate since the requirements established in 
6

Montrose were designed to ensure that an amendment of 

certification of an exclusive representative in an existing unit 

conforms to the desires of the membership of that unit. BLM, 56 

FLRA at 207. 

< The ballot must inform the members of the choices inherent in the 

election so that the members may make a reasoned decision on 

how to vote. Reasonable precautions must also be taken to ensure 

the secrecy of the ballots so that the privacy and free choice of 

voters is not compromised by election conduct. UFE, at 587. 

C. Impact of Trusteeships on Reaffiliation Petitions :

1. Trusteeship Imposed After the Filing of the Petition: when 

a trusteeship is imposed after a reaffiliation vote and after the filing 

of a petition to change the certification, the trusteeship cannot 

affect the processing of the petition and the issuance of a new 

certification. New Mexico AANG, 56 FLRA at 149. Thus, for 

purposes of processing the reaffiliation petition, the validity of the 

trusteeship is not an issue. 

a. Any national union or the trustee on behalf of the 

national union requesting to intervene based on its

interest in ensuring that the local exclusive 

representative affiliated with the national union has 

properly followed the Montrose standards is 

allowed to participate as an intervening party with

the right to file an application for review with the 

Authority. The national labor organization is a party 

“affected by issues raised in the petition” and is 

notified of the petition in accordance with § 2422.6 

of the regulations. Utah Army National Guard, 

U.S. Department of the Army, Draper, Utah (Utah 

ARNG), an unnumbered decision dated April 16, 

1999. 

b. The Region deals with the local union which filed 

the petition as the petitioner throughout the 

processing of the petition, regardless of the 

imposition of a trusteeship. Thus, requests by the
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Representation Case Law Guide October 2000 

trustee or national union to withdraw a petition filed 

by a local exclusive representative are denied. 

2. Trusteeship Imposed Prior to the Petition, Whether Before 

or After the Vote:

 a. A trusteeship imposed before a petition, if valid, 

results in dismissal of the petition. The framework 

of the Statute requires the “vote - trusteeship - 

petition” scenario to be treated in the same manner

as if the trusteeship had been imposed before the 

reaffiliation vote occurred i.e. - the “trusteeship - 

vote - petition” scenario. Thus, if otherwise 

presumed valid (discussed below), the trusteeship 

is deemed effective and any individual filing a 

petition seeking a change in the certification must

be authorized to do so by the exclusive 

representative’s administrator - the trustee. Thus, 

whether the reaffiliation vote precedes or is 

subsequent to the imposition of the trusteeship, if

the trusteeship is valid, the Regions recognize the

designated trustee as the representative of the 

union. The critical event is not whether the 

reaffiliation vote preceded the trusteeship, but 

whether the trusteeship preceded the filing of the 

petition. 

b. Determining the Procedural Validity of the 

Trusteeship: 

 1) Procedural Validity of Trusteeship Pending 

Before the Department of Labor 

In U.S. Environmental Protection Agency, 

Washington, D.C. and National Federation of 

Federal Employees, Local 2050 (EPA), 52 FLRA 

772 (1996), a situation where the trusteeship was 

imposed prior to a reaffiliation vote and the petition 

(“trusteeship, vote and petition” situation), the local 
8

union placed in trusteeship filed a complaint with 

the Assistant Secretary challenging the legality of

the trusteeship. Where the trusteeship was 

imposed prior to the filing of the petition and the

validity of the trusteeship was pending before the 

Department of Labor, the Authority provided the 

following guidance to the Regional Directors: 

(a) Where the Regional Director determines 

that a trusteeship was established "in 

conformity with the procedural 

requirements of [the parent labor 

organization's] constitution and bylaws and 

authorized or ratified after a fair hearing 

either before the executive board or before 

such other body as may be provided in 

accordance with its constitution and 

bylaws[,]" as provided by 29 C.F.R. 

§ 458.28, the Regional Director, in the 

absence of a final decision by the 

Assistant Secretary resolving the 

trusteeship matter, will presume the 

validity of the trusteeship and will dismiss 

the petition on the ground that the person 

purporting to act for the incumbent labor 

organization has no authority to act. 

(b) Where the Regional Director determines 

that a trusteeship was not established "in 

conformity with the procedural 

requirements of [the parent labor 

organization's] constitution and bylaws and 

authorized or ratified after a fair hearing 

either before the executive board or before 

such other body as may be provided in 

accordance with its constitution and 

bylaws[,]" as provided by 29 C.F.R. 

§ 458.28, the Regional Director, in the 

absence of a final decision by the 
Office of the General Counsel 

Representation Case Law Guide October 2000 

Assistant Secretary resolving the 

trusteeship matter, will place the petition in 

abeyance. Upon being notified by the 

parties of the issuance of a final decision 

by the Assistant Secretary, the Regional 

Director will take appropriate action in light 

of that decision to either process or 

dismiss the petition [footnote omitted]. 
10

 (2) Procedural Validity of Trusteeship Not 

Pending Before the Department of Labor 

A legal issue remained unanswered in EPA at 

footnote 13 - namely, the effect that will be given 

to the failure of a local union placed in trusteeship 

to file a complaint with the Assistant Secretary 

challenging the legality of a trusteeship. Based on

the first enumerated principle in EPA, Regional 

Directors also determine in this scenario whether a

trusteeship was established in conformity with the 

procedural requirements of the parent labor 

organization's constitution and bylaws and 

authorized or ratified after a fair hearing even if no 

party has filed a challenge with the Assistant 

Secretary.11

 

11 The Labor-Management Reporting and Disclosure Act of 1959, as 

amended (29 U.S.C. § 464(c)), and implementing Department of Labor 

regulations (29 C.F.R. § 458.28), establish the criteria for presuming the 

validity of a trusteeship for eighteen months. 29 U.S.C. § 464(c) provides: 

In any proceeding pursuant to this section a trusteeship established by a labor 

organization in conformity with the procedural requirements of its constitution 

and bylaws and authorized or ratified after a fair hearing either before the 

executive board or before such other body as may be provided in accordance 

with its constitution and bylaws shall be presumed valid for a period of eighteen 

months from the date of its establishment and shall not be subject to attack 

during such period except upon clear and convincing proof that the trusteeship 

was not established or maintained in good faith for the purpose allowable 

under section 462 of this title.... 

29 C.F.R. § 458.28 provides: 

In any proceeding involving § 458.26, a trusteeship established by a labor 

organization in conformity with the procedural requirements of its constitution 

and bylaws and authorized or ratified after a fair hearing either before the 

executive board or before such other body as may be provided in accordance 
Office of the General Counsel 

Representation Case Law Guide October 2000 

 

with its constitution and bylaws shall be presumed valid for a period of 18 

months from the date of its establishment and shall not be subject to attack 

during such period except upon clear and convincing proof that the trusteeship 

was not established or maintained in good faith for purposes allowable under § 

458.26. After the expiration of 18 months the trusteeship shall be presumed 

invalid in any such proceeding, unless the labor organization shall show by 

clear and convincing proof that the continuation of the trusteeship is necessary 

for a purpose allowable under § 458.26.
12

 If the Regional Director finds that the procedural 

requirements have been met, the Regional Director 

presumes “the validity of the trusteeship,” just as if 

there had been a challenge filed with the Assistant

Secretary. The principle established by the 

Authority in EPA remains valid even though no 

challenge was filed with the Assistant Secretary. 

Thus, since the Authority has mandated that 

Regional Directors may make such threshold 

decisions and presume the validity of a trusteeship

based on procedural grounds when a challenge is 

pending before the Assistant Secretary, Regional 

Directors have that same authority when no 

challenge has been filed with the Assistant 

Secretary. To hold otherwise, would tend to 

discourage a party that wishes to challenge a 

trusteeship from filing with the Assistant Secretary 

based on the strategy that not to file would prevent 

the Regional Director from presuming the validity 

of the trusteeship on procedural grounds. 

 c. Determining Whether the Trusteeship was Established for 

a Valid Purpose 

The Assistant Secretary has taken a position in cases where a 

party has challenged the legality of the purpose of a trusteeship 

imposed to block a reaffiliation vote. The parties in these cases 

had Montrose petitions pending in the Regions which had been 

deferred pending the Assistant Secretary’s determination on the 

validity of the trusteeships which were imposed prior to the filing of 

the petition. The Assistant Secretary took the legal position that 

parent labor organizations cannot impose a trusteeship simply to 

prevent a local from disaffiliating from the parent organization.12 

The Assistant Secretary issued a complaint in one case alleging 

 

12

 See e.g., AFL-CIO Laundry and Dry Cleaning International Union v. AFLCIO Laundry et. al., 70 F. 3d 717 (1st Cir. 1995)(“[Co]urts have widely 

recognized that preventing disaffiliation is not a proper purpose under [29 

U.S.C.] § 462 for imposition of a trustee.”).
Office of the General Counsel 

Representation Case Law Guide October 2000 

that imposition of such a trusteeship violated section 7120(d) of the 

Statute, as implemented by 29 C.F.R. § 458.26 because the 

trusteeship was imposed for an improper purpose. In view of the 

pending litigation, the Region continued to defer processing those 

reaffiliation petitions.13 

The Authority to date only has had an opportunity to discuss 

trusteeships and reaffiliation petitions in one case where the matter 

was pending before the Assistant Secretary. In order to obtain 

further guidance from the Authority in a manner that provides for 

representation petitions to be processed expeditiously, the 

Regional Director also examines the validity of the purpose of a 

trusteeship when there is no pending case before the Department 

of Labor and the trusteeship was imposed prior to the filing of the 

petition. In view of the legal position taken by the Assistant 

Secretary and noting particularly that it is the Assistant Secretary 

and not the Office of the General Counsel that has established the 

test for determining the validity of trusteeships, Regions limit the 

examination to a factual finding of whether the illegal purpose of 

blocking reaffiliation was the purpose for imposing the trusteeship. 

The Regions can not make determinations as to whether other 

asserted purposes are valid under 29 U.S.C. § 462. 

With respect to the procedural validity of the trusteeship, the 

Regions: 

 

13

 These petitions involve the National Federation of Federal Employees 

(NFFE) and NFFE Local 28 at Fort Sam Houston, Texas.

< examine the procedural requirements of the parent union's 

constitution and bylaws and decide if those provisions were 

followed; 

< decide if the local union was afforded a fair hearing; and 

< determine if the trusteeship was authorized or ratified after that 

hearing as provided for in the parent union's constitution and 

bylaws. 
14

With respect to the purpose of the trusteeship, the Regional 

Directors also determine if the purpose of the trusteeship was to 

preclude reaffiliation. In situations: (1) where there is no pending 

Department of Labor proceeding when a petition is filed after 

imposition of the trusteeship; and (2) the Region finds that the 

trusteeship lacks either procedural validity or was established to 

block reaffiliation - the Region obtains clearance from the Office of 

the General Counsel prior to continue processing the reaffiliation 

petition. 
Office of the General Counsel 

Representation Case Law Guide October 2000 

 

D. Unresolved Issues : The OGC identified several unresolved 

issues that were not before the Authority in cases discussed 

herein. The Regions should be alert to any cases: 

< Involving an agency’s failure to recognize the incumbent when a 

trusteeship is imposed after a Montrose petition is filed. 

< Raising issues of the continuation of a labor organization. 

< Where the Region determines that a trusteeship imposed prior to 

the filing of a Montrose petition is invalid, procedurally or 

substantively. 

< In which the national labor organization revokes the charter of the 

local union that holds the certification during a Montrose

proceeding. 

< Any Montrose petitions where a very small percentage of the 

employees are union members and vote for reaffiliation, raising the 

possibility that there is a question as to continued majority status 

that affects the continuity of representation criteria. BLM, 56 FLRA 

202. 

See CHM 58.3.20.

E. Filing Procedures: 

< Only an authorized agent of the incumbent labor organization has 

standing to file a petition to amend the incumbent’s certification. 

U.S. Army Reserve Command, 88th Regional Support Command, 

Fort Snelling, Minnesota, 53 FLRA 1174, 1178 (1998). 

< The “gaining” union in a Montrose situation may file the petition on 

behalf of the incumbent petitioner if it is designated by the 

incumbent as its representative. BLM, 56 FLRA 202 at n.1. 

< In accordance with § 2422.6 of the regulations, the Regions serve 

a copy of a Montrose petition on the national union of the 
16

incumbent local that is seeking to change its affiliation. New 

Mexico AANG, 56 FLRA 145. 

< In Utah ARNG, an unnumbered decision dated April 16, 1999, the 

Authority denied an application for review of the Regional Director’s 

Decision and Order where the unions on the reaffiliation ballot 

where granted “interested party” status. The application for review 

was filed by a third party on the reaffiliation ballot. In a footnote, 

the Authority noted that the Regional Director granted the gaining 

union and another union that was on the ballot “interested party” 

status. The Authority denied review, noting the unions were 

granted “interested party” status and not “intervenor status.” 

Neither the regulations nor the Statute provide for “interested party” 

status and the Authority did not differentiate between “interested 

parties” and intervenors in the footnote. 

< The Regulations, however, do not provide a procedure for the 

union(s) on the reaffiliation ballot to intervene, although the 

potential gaining union is clearly affected by issues raised in the 

petition (see § 2421.21 of the regulations and CHM 5.2 and CHM 

15.5.2). The intervention section of the regulations, § 2422.8, does 

not appear to specifically provide a procedure that permits the 

potential gaining union, other unions that were on the ballot or the 

parent of the incumbent local to intervene in the petition. 

Consistent with Utah ARNG, these unions are “affected by issues 

raised” and pursuant to § 2422.6 are notified of the pending petition 

in accordance with CHM 15.10 and CHM 17.13.

 

See HOG 43 for specific guidance on developing a record 

about amending the name of the exclusive representative and 

trusteeships at hearing.
Office of the General Counsel 

Representation Case Law Guide October 2000 

1

8 Schism

Schism is defined as “[a] basic intraunion conflict over policy at the 

highest level of an international union or within a federation which 

results in a disruption of existing intraunion relationships; and the 

employees seek to change their representative for reasons related 

to such conflict resulting in such confusion in the bargaining 

relationship that stability can only be restored by an election.” 

Syscon International, Inc., 322 NLRB 539, 543 (1996) citing Yates 

Industries, 264 NLRB 1237, 1249 (1982), citing Hershey Chocolate 

Corp. (Hershey Chocolate), 121 NLRB 901 (1958) [enforcement 

denied in the unfair labor practice case in NLRB v. Hershey 

Chocolate Corp., 297 F.2d 286 (3rd Cir. 1981) but schism doctrine 

not impaired]. In a schism case, the petitioner generally asserts 

that the intra-union conflict constitutes the type of unusual 

circumstances which justifies the filing of an election petition during 

a contract bar period or which justifies severance of a group of 

employees from a larger appropriate unit. 

 Standard: Department of the Navy, Pearl Harbor Naval Shipyard

Restaurant System, Pearl Harbor, Hawaii (Pearl Harbor) 28 FLRA 

172 (1987) is the first and only case considered by the Authority on 

the merits of schism. In that case, the Authority upheld the 

Regional Director’s decision and found that the Regional Director 

properly used private sector case law as a guide in rendering his 

decision. Citing Hershey Chocolate, 121 NLRB 901, (1958), the 

Authority adopted NLRB precedent in determining whether an 

asserted schism existed. 

In Hershey Chocolate, 121NLRB at 906, the NLRB stated: 

The initial consideration is a determination 

of the factors necessary to a finding that a 

schism exists warranting an election. 

Relevant to that determination is the fact 

that the schism issue arises in the context 

of an existing contract which would 

otherwise achieve the statutory objective 

of promoting industrial stability and 

therefore under normal Board practice 
2

would remain a bar for the balance of its 

reasonable term. The direction of an 

election on the basis of a schism therefore 

constitutes an exception to the general 

principle that in the interest of promoting 

industrial stability, the existence of a 

contract meeting the required standards 

warrants postponement of the employees’ 

statutory right freely to select their 

representative. Accordingly, before 

directing an election on the basis of an 

alleged schism, the Board must be 

satisfied that the existing contract can no 

longer serve to promote industrial stability, 

and that the direction of an election would 

be in the interests of achieving industrial 

stability as well as in the interests of the 

employees’ rights in the selection of their 

representative. 

A schism occurs when:

1. there is basic intra-union conflict over fundamental 

policy questions within the highest level of an 

international union or federation; and 

2. the conflict causes employees in the local unit to 

take action, based on the conflict itself, which 

creates such confusion in the bargaining 

relationship that stability can only be restored 

through an election. 

Pearl Harbor, 28 FLRA at 173. Hershey Chocolate, 121 NLRB at 

908. 

Factors: To make a schism finding, Hershey Chocolate

established three conditions: 

1. There must be a basic intra-union conflict affecting the 
Office of the General Counsel 

Representation Case Law Guide October 2000 

certified representative. A basic intra-union conflict is any 

conflict over policy at the highest level of an international 

union, whether or not it is affiliated with a federation, or 

within a federation, which results in the disruption of 

existing intra-union relationships. Hershey Chocolate

121NLRB at 907. 

2. Employees in the unit seek to change their bargaining 

representative for reasons related to the basic intra-union 

conflict and have an opportunity to exercise their judgment 

on the merits of the controversy at an open meeting, called 

with due notice to the members in the unit for the purpose 

of taking disaffiliation action for reasons related to the basic 

intra-union conflict. Hershey Chocolate 121NLRB at 908. 

3. The action of the employees in the unit seeking to change 

their representative took place within a reasonable time 

after the occurrence of the basic intra-union conflict. 

Hershey Chocolate 121NLRB at 908. 

Pearl Harbor findings: In applying the schism test in Pearl 

Harbor, the Authority concluded that: 

< Alleged intra-union conflicts which merely involve a dispute over 

the local union’s internal procedures do not support an assertion of 

schism. To find a schism, the alleged intra-union conflicts must 

involve a dispute over fundamental policy issue(s). In addition, the 

conflict must exist at the highest level of an international union or 

federation of unions. 

< In the absence of evidence that realignment, disaffiliation or 

expulsion of members had occurred as a result of the internal 

disputes, no schism was present. 

Based on the facts in Pearl Harbor, the Regional Director did not 

have to consider whether conditions two or three were met. 

See HOG 44 for specific guidance on developing a record 
4

about this topic at hearing.

References:

The Louisville Railway Co., 90 NLRB 678 (1950). 

Swift and Co., 145 NLRB 756 (1963). (Discusses schism 

criteria. A mere disaffiliation movement within a local, born 

out of a policy conflict between the local and the 

international, does not alone satisfy the Board’s 

requirement for schism.) 

Southwestern Portland Cement Co., 126 NLRB 931, 934 (1960). 

DOD, National Guard Bureau, New York National Guard, Division 

of Military and Naval Affairs, Latham, New York, 46 FLRA 1468. 

(Discusses appropriate petition if schism not found.) 

Georgia Kaolin Co., 287 NLRB 485 (1987). (Conflict must be at 

highest level or Board cannot reach question of whether other 

conditions exist for a schism.) 
Office of the General Counsel 

Representation Case Law Guide October 2000 

Office of the General Counsel 

Representation Case Law Guide October 2000 

1

9 Severance

Severance issues arise when a petitioner seeks to "carve out" or 

sever employees from an established bargaining unit to establish a 

separate unit. Any election petition requesting severance from an 

existing unit requires a 30 percent showing of interest in the 

petitioned-for unit, not 30 percent of the existing bargaining unit. 

Office of Hearings and Appeals, Social Security Administration, 16 

FLRA 1175 (1984). 

 Standard: Severance is granted only in the rare circumstances 

where: 

(1) the existing unit continues to be appropriate under 

the criteria set forth in section 7112(a)(1) of the

Statute; and

(2) unusual circumstances are present which justify 

removing the particular group of employees from 

the existing unit. 

U.S. Department of Veterans Affairs (Veterans Affairs), 35 FLRA 

172, 179-80 (1990) (severance denied) and U.S. Department of the 

Treasury, Bureau of Engraving and Printing (BEP), 49 FLRA 100 

(1994) (severance granted). Where the Authority determines that 

the existing unit remains appropriate and no unusual 

circumstances exist which would warrant severance, there is no 

need to make any further finding with respect to whether the 

petitioned-for unit would also constitute a separate appropriate unit. 

Carswell Air Force Base, Texas (Carswell Air Force Base), 40 

FLRA 221, 228 (1991). 

 

 Unit continues to be appropriate: Where an established unit 

continues to remain appropriate and no unusual circumstances are 

present, then the Regional Director does not grant a petition for 

severance and dismisses the petition. Therefore, the Hearing 

Officer ensures that the record contains all evidence necessary to 

make an appropriate unit determination in the existing bargaining 
2

unit, applying the criteria of section 7112(a)(1) of the Statute. See, 

Section 37, Appropriate unit determinations. 

As a rule, the Authority relies on the second and third criteria of the 

appropriateness of unit test to find severance is not warranted 

where it would result in unit fragmentation. Thus, in Library of 

Congress, 16 FLRA 429 (1984), the Authority concluded that “a 

petition seeking to remove certain employees from the overall unit 

and to separately represent them must be dismissed, in the interest 

of reducing the potential for unit fragmentation and thereby 

promoting effective dealings and efficiency of agency operations.” 

 Unusual circumstances are present: In evaluating whether 

unusual circumstances warranting severance exist, the Authority 

looks at a number of factors. 

A. Reorganization: The exclusion or “severance” of a group of 

employees from the existing unit due to a substantial 

change in the character and scope of the unit may be an 

unusual circumstance which would warrant severance. In 

such cases, the employees who are severed from the 

existing unit no longer have a community of interest with 

the remaining employees. U.S. Department of Labor, 23 

FLRA 464 (1986). 

B. The adequacy of the representation afforded by the 

incumbent: The Authority will consider the incumbent 

union’s failure to represent the petitioned-for employees 

fairly and effectively in evaluating whether severance is 

warranted. See Veterans Affairs, 35 FLRA at 180; 

Department of the Navy, Naval Air Station, Point Mugu, 

California (Point Mugu), 26 FLRA 620 (1987); and 

Department of the Army, Headquarters, Fort Carson, and 

Headquarters, 4th Infantry Division, Fort Carson, Colorado, 

34 FLRA 30 (1989). 

C. Inequities in working conditions among employees in the 

same classifications and job assignments who are in

different bargaining units. See International 
Office of the General Counsel 

Representation Case Law Guide October 2000 

Communication Agency and the National Federation of

Federal Employees, Local 1418 and International 

Communication Agency and the American Federation of

Government Employees, Local 1812, 5 FLRA 97 (1981). 

The following do not evidence inadequacy of representation by an 

incumbent unit for the purpose of establishing unusual 

circumstances: 

Χ A bare disclaimer of interest, without more. BEP, 49 FLRA 

at 107 n.3. 

Χ A small percentage of membership in the incumbent union. 

Carswell Air Force Base, 40 FLRA at 230-231. 

 
4

Χ The lack of a collective bargaining agreement, where there 

is no evidence that the failure to renegotiate such an 

agreement has deprived unit employees of rights under the 

Statute or otherwise has not affected the petitioned-for 

employees any differently than other employees in the unit. 

Point Mugu, 26 FLRA at 623. 

• Unrepresented employees. Severance concerns 

carving out a group of employees from an existing 

represented bargaining unit. Library of Congress, 16 FLRA 

at 432. 

• The size of the incumbent’s membership is not 

indicative of the quality or extent of the incumbent’s 

representation of the group of employees that the petitioner 

seeks to sever. Carswell Air Force Base, 40 FLRA at 230. 

In addition to obtaining a complete record on the appropriateness 

of the existing unit, and evidence of unusual circumstances 

warranting consideration of severance, the Hearing Officer obtains 

a complete record as to the appropriateness of the proposed unit of 

severed employees. This is not inconsistent with the Authority's 

finding in Carswell Air Force Base. Since only the Regional 

Director is empowered to make representation case 

determinations, the Hearing Officer obtains a complete and 

adequate record, without pre-judging the results. 

See BEP, 49 at 107, where the Agency opened a new facility and 

most of the employees were transferred along with the parties’ 

agreements to recognize the exclusive bargaining relationships that 

exist at the first plant. However, the circumstances surrounding the 

special police at the new facility were completely different and 

warranted an appropriate severance as the police formed an 

appropriate functional unit. 

See HOG 45 for specific guidance on developing a record 

about this topic at hearing.

Other references:

Defense Logistics Agency, Defense Supply Center Columbus, 
Office of the General Counsel 

Representation Case Law Guide October 2000 

Columbus, Ohio, 53 FLRA 1114 (1998). 

National Association of Government Employees, Service 

Employees International Union, Local 5000, AFL-CIO-CLC and 

Service Employees International Union, AFL-CIO-CLC and 

Department of Veterans Affairs, 52 FLRA 1068 (1997). 

Department of Health and Human Services, 43 FLRA 1245 (1992) 

Office of the General Counsel 

Representation Case Law Guide October 2000 

1

10 Status of a labor organization

A. Compliance with section 7103(a)(4) of the Statute .

 A labor organization is defined in section 7103(a)(4) of the Statute 

as: 

 [A]n 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 ... . 

 

Section 7103(a)(4) also provides four statutory exemptions in 

defining labor organization under the Statute: 

 (A) an organization which, by its 

constitution, bylaws, tacit agreement 

among its members, or otherwise, denies 

membership because of race, color, creed, 

national origin, sex, age, preferential or 

nonpreferential civil service status, political 

affiliation, marital status, or handicapping 

condition; 

 (B) an organization which 

advocates the overthrow of the 

constitutional form of government of the 

United States; 

 (C) an organization sponsored by 

an agency; or 

 (D) an organization which 

participates in the conduct of a strike 

against the Government or any agency 

thereof or imposes a duty or obligation to 

conduct, assist, or participate in such a 

strike. 

 Basis for challenge: Section 2422.11(a) of the regulations states 

that the only basis on which a challenge to the status of a labor 
2

organization may be made is compliance with 5 U.S.C. 7103(a)(4). 

A challenge to the status of a labor organization can be made by 

any party including the Regional Director. For guidelines on 

processing challenges to the status of a labor organization, see 

CHM 19 of the Representation Case Handling Manual. 
Office of the General Counsel 

Representation Case Law Guide October 2000 

3

The Authority has held that challenges may also be filed pursuant 

to section 7111(f)(1) of the Statute. Section 7111(f)(1) prohibits 

granting exclusive recognition to a union which is subject to corrupt 

or undemocratic influences. See Part B below. 

 Factors in determining status as a labor organization pursuant 

to section 7103(a)(4) of the Statute: The Authority looks to the 

facts and circumstances of each case to determine whether a 

petitioner or an intervenor is a labor organization within the 

meaning of section 7103(a)(4). 

< A formal dues structure is not necessary to establish that a 

petitioner or an intervenor is a labor organization. Rather, in 

applying the broad definition of the term dues in section 7103(a)(5) 

of the Statute, the Authority examines whether there is evidence 

that employees paid dues, fees or assessments. See U.S. 

Department of Veterans Affairs, 35 FLRA 172 (1990). 

< A union in the formative stages of developing its structure and 

operations as a labor organization, will not necessarily operate with 

the degree of formality or precision expected of an established 

organization. Such a lack of formality does not alone establish that 

a union is not a labor organization. U.S. Department of Veterans 

Affairs at 178. 

< The fact that a union is in trusteeship, will not alone suffice to 

disqualify it as a labor organization. Terminal System Inc., 127 

NLRB 979 (1960). 

< The Authority has revoked the certification of a federal sector union 

based on Section 7103(a)(4)(D) of the Statute, because the union 

engaged in an unlawful strike. The Authority held that the union 

was no longer a labor organization within the meaning of the 

Statute. See Professional Air Traffic Controllers Organization, 

Affiliated with MEBA, AFL-CIO, 7 FLRA 34 (1981). 

Note: There are major differences between the private sector and 

federal sector definitions of a labor organization. Private sector 

precedent on this issue may be misleading. 
4

See HOG 46A for specific guidance on developing a record 

about this topic at hearing.
Office of the General Counsel 

Representation Case Law Guide October 2000 

B. Claims made pursuant to section 7111(f)(1) of the Statute that 

a labor organization should not be accorded exclusive 

recognition under the Statute because the labor organization 

is subject to corrupt influences or influences opposed to 

democratic principles.

In 1997 the Authority issued two decisions concerning section 

7111(f) of the Statute that could have a significant impact on the 

manner in which the Regions process representation petitions: 

Division of Military And Naval Affairs (New York National Guard), 

Latham, New York and National Federation of Civilian Technicians 

(NYNG), 53 FLRA 111 (1997) and U.S. Information Agency, 

Washington, D.C. and American Federation of Government 

Employees, Local 1812, AFL-CIO, (USIA), 53 FLRA 999 (1997). 

Both decisions concern challenges that a labor organization should 

not be accorded exclusive recognition under the Statute because 

the organization is subject to corrupt influences or influences 

opposed to democratic principles. The challenge in NYNG was 

raised by an incumbent union against a raiding union that had filed 

a petition for an election during an open period. The challenge in 

USIA was raised in a petition filed by an individual bargaining unit 

member seeking to decertify the incumbent, filed without a showing 

of interest. Neither the regulations expressly provide for this type 

of petition or this type of challenge. However, the Authority held in 

these two cases, that a petition or a challenge raising claims 

pursuant to section 7111(f)(1) may be filed and addressed by the 

FLRA. If filed as a petition, there is nothing in the Statute or its 

legislative history that suggests that a petition filed pursuant to 

section 7111(f)(1) requires a showing of interest or is subject to the 

timeliness requirements. In all other respects, such a petition is 

processed according to the regulations concerning petitions which 

do not require a showing of interest. See USIA, 53 FLRA 999, 

1004 (1997) and CHM 20.1.8.

Section 7111(f)(1) of the Statute, provides that: 

(f) Exclusive recognition shall not be accorded to a labor 
6

organization– 

 (1) if the Authority determines that the labor 

organization is subject to corrupt influences or 

influences opposed to democratic principles; 

In NYNG, the Authority established certain legal principles or rules 

of law for making section 7111(f)(1) determinations [NYNG, 53 

FLRA 111, 119-125 (1997)]: 

1. The Authority makes determinations concerning exclusive 

recognition under section 7111(f)(1) of the Statute: 

(a) Only the Authority has jurisdiction to decide issues 

relating to the granting of exclusive recognition to 

labor organizations representing employees in the 

Federal sector. 

(b) Freedom from corrupt and anti-democratic 

influences is a requirement that must be met 

before the Authority can certify a labor organization 

as an exclusive representative. 

2. The Authority’s framework for deciding challenges to 

exclusive recognition under section 7111(f)(1) of the 

Statute includes: 

(a) The Statute does not define the terms “corrupt 

influences” or “influences opposed to democratic 

principles” in either section 7111(f)(1) or 7120. 

However, a labor organization is presumed free 

from corrupt and anti-democratic influences if the 

labor organization is subject to the governing 

requirements specified in section 7120(a)(1) 

through (4) of the Statute. This may be 

demonstrated by submission of a constitution and 

bylaws that meet the criteria set forth in section 

7120(a). (NOTE: When a petition is filed by a 

labor organization, the labor/organization 

petitioner, by signing the petition form, certifies that 
Office of the General Counsel 

Representation Case Law Guide October 2000 

it has submitted to the Department of Labor and to 

the activity/agency in the case, in compliance with

section 7111(e) of the Statute, a roster of its 

officers and representatives, a copy of its 

constitution and bylaws, and a statement of its 

objectives. Thus, when the Region determines that 

a petitioner has complied with Reg. § 2422.3(b), 

the petitioner has demonstrated a presumption that 

it is not subject to corrupt or anti-democratic 

influences.) 
8

(b) The presumption that a labor organization is free 

from corrupt and anti-democratic influences, 

established by meeting the requirements of section 

7120(a), may be rebutted by a showing that there 

is reasonable cause to believe that the labor 

organization is not free from such influences. The

standards for rebutting the presumption are set 

forth in section 7120(b). Under section 7120(b), 

the presumption may be rebutted based on 

reasonable cause to believe that: 

(1) the organization was suspended or 

expelled from, or was otherwise 

sanctioned by, a parent organization, or 

federation of organizations with which it 

had been affiliated, based on its 

demonstrated unwillingness or inability to 

comply with the governing procedures set 

out in section 7120(a)(1) through (4); or 

(2) the labor organization is in fact subject to 

corrupt or anti-democratic influences. 

NYNG at 121. 

(c) A finding by a third party with jurisdiction over the 

allegations asserted to establish corrupt or antidemocratic influences may establish reasonable 

cause for the Authority to proceed with the section

7111(f)(1) claim. The Authority will rely on the third 

party findings when the third party has jurisdiction 

over the matter asserted to establish the requisite

reasonable cause. The Authority recognizes the 

“primacy” of other third party procedures for 

resolving specific disputes between unions and 

either individuals or other unions. In this regard, 

the Authority stated that “the representation 

proceedings provided by section 7111 are 

designed solely to certify and define the collective 

bargaining rights of employees and unions to 

engage in representational activity with agencies. 

They are not designed to adjudicate specific 
Office of the General Counsel 

Representation Case Law Guide October 2000 

disputes with collective bargaining representatives

and they provide no remedies other than the grant 

or denial of certification. Such disputes are 

appropriately resolved through the procedures 

designed to adjudicate them...” USIA, 53 FLRA 

999, 1004 (1997). For instance, the Department of 

Labor has jurisdiction for enforcing standards of 

conduct set forth in section 7120. See also NYNG, 

53 FLRA at 122, n.12 and 13. 

If a third party with jurisdiction over the conduct

alleged to establish the requisite reasonable cause

finds a violation based on the same facts raised by

the 7111(f)(1) challenge, the Authority will accept

that finding as evidence that there is reasonable 

cause to believe that the presumption of freedom 

from corrupt or anti-democratic influences has 

been rebutted. Consistent with the requirements of

section 7120(b), the accused labor organization 

must furnish evidence to the Regional Director of 

its freedom from such influences. 

(d) If the presumption is rebutted, the burden of proof 

under section 7111(f) shifts to the accused labor 

organization to demonstrate that, in fact, it is free 

from influences that would preclude recognition. A

labor organization meets this burden by 

demonstrating, for example, that: (1) the violation

found by a third party has been cured (for example,

that sanctions imposed by a parent organization 

have been lifted); or (2) the violation found by a 

third party is in effect de minimis and thus is 

insufficient to warrant denial or revocation of 

certification. 

(e) Dismissal by a third party, such as DOL, will suffice 

to establish the absence of reasonable cause to 

believe that denial of certification is required under 

section 7111(f)(1). 

(f) The Authority will normally stay its proceedings 
10

when a case is pending before a third party that is

based on the same or substantially similar 

allegations that support the section 7111(f)(1) 

claim. 

CAUTION: Violations of Standards of Conduct Do Not 

Automatically Establish Corrupt Influences Warranting 

Revocation or Denial of Certification

It is significant to note the difference between the traditional 

remedies ordered in standards of conduct cases and the remedy 

which the Authority is required to order if it finds that a union is 

subject to corrupt or anti-democratic influences. For example, the 

Department of Labor may order a respondent to cease and desist 

from violative conduct and may require a respondent to take such 

affirmative action as is deemed appropriate to effectuate the 

policies of the Statute.14 Under the Statute, however, a labor 

organization that is found to be subject to corrupt or antidemocratic influences may not be recognized under the Statute as 

an exclusive representative and thus, either loses its existing 

recognition for any bargaining unit it may represent or is precluded 

from being recognized as the representative for any new 

bargaining unit. 

If a third party with jurisdiction over conduct alleged to constitute 

reasonable cause to believe that a labor organization is subject to 

corrupt or anti-democratic influences find a violation, that finding 

establishes only reasonable cause to believe that the presumption 

of freedom from corrupt or anti-democratic influences has been 

rebutted. That finding does not establish that, in fact, the union is 

subject to corrupt and anti-democratic influences. Rather, that is 

the Authority’s sole province. Thus, even though certain conduct 

may be found to be violations of standards of conduct requiring an 

affirmative remedy, that same conduct may not establish that a 

union is subject to corrupt or anti-democratic influences requiring 

the denial or revocation of certification. Moreover, if a union is 

found to be subject to corrupt or anti-democratic influences, it is 

 

14

 29 C.F.R. § 458.91.
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Representation Case Law Guide October 2000 

unclear whether any revocation of certification extends to all 

bargaining units represented by that union under the Statute. For 

example, some locals and nationals represent more than one 

bargaining unit. The authority has not had an opportunity to provide 

guidance on these issues nor has it had a case before it in which it 

found the union to be subject to corrupt influences or influences 

opposed to democratic principles. 

For Case Handling Procedures, see CHM 5.10, 19.1, 20.1.8, 

23.9.3.

See also HOG 46B for guidance at a hearing if a case alleging 

a labor organization is subject to corrupt or undemocratic 

principles raised issues requiring a hearing.
12
Office of the General Counsel 

Representation Case Law Guide October 2000 

1

11 (Reserved) 
2
Office of the General Counsel 

Representation Case Law Guide October 2000 

3

12 Timeliness of election petitions

Timeliness requirements for petitions are imposed by section 7111 

of the Statute and implemented in section 2422.12 of the 

regulations. The Statute’s timeliness requirements apply only to 

petitions seeking an election, whether filed by labor organizations, 

by individuals seeking decertification of an exclusive representative 

or by agencies. 

• Exceptions to the timeliness requirements may be 

warranted in unusual circumstances. 

• Certain timeliness requirements may apply to the filing of 

amended petitions and the adequacy of a petitioner's 

showing of interest. See CHM 18.8. 

• Additional bars set out in section 2422.14 of the regulations 

apply to the filing of petitions seeking elections after the 

withdrawal or dismissal of a petition or after the filing of a 

disclaimer of interest by an exclusive representative. See 

CHM 11.

A. Election and Certification Bars 

 Election Bar: Section 7111(b) precludes conducting an election 

in "any appropriate unit or subdivision thereof within which, in the 

preceding 12 calendar months, a valid election...has been held." 

 

The election bar is applicable to units where there is no incumbent 

exclusive representative. Thus, if a valid election is conducted, and 

no union is certified, no election may be held in that unit or a 

subdivision of that unit within twelve months of the date the election 

is held. The Authority has not had the opportunity to issue a 

decision on this point. In the private sector, the election is 

considered to have been held on the date the balloting is 

completed, rather than the date of issuance of the certification of 

results of election. See Mallinckrodt Chemical Works, 84 NLRB 

291 (1949). 
2

The election bar rule does not apply to a petition seeking an 

election in a broader unit which includes the unit in which an 

election previously was conducted, because the broader unit is not 

the same unit or a subdivision of the unit in which the election was 

held. See Federal Aviation Administration, 2 A/SLMR 340 (1972). 

The election bar rule does not apply to petitions to consolidate 

existing units filed under section 7111(g). 

 Certification Bar: Section 7111(f) prohibits according exclusive 

recognition to a labor organization: 

 (4) if the Authority has, within the 

previous 12 calendar months, conducted a 

secret ballot election for the unit described 

in any petition and in such election a 

majority of the employees voting chose a 

labor organization for certification as the 

unit’s exclusive representative. 

• The certification bar applies during the first year following 

the issuance of a certification of representative, including a 

certification on consolidation of units, if no collective 

bargaining agreement has been executed. Once an 

agreement is executed, the contract bar rule applies to the 

unit. 

• An exclusive representative voluntarily waives the 

certification bar when it files a petition for a broader 

appropriate unit which includes the unit for which the 

certification was issued. See U.S. Army Corps of 

Engineers, Mobile District, 2 A/SLMR 486 (1972). In such 

cases, in order to obtain an election in the broader unit, the 

exclusive representative must be willing to waive its 

exclusive recognition status by putting it “on the line” at the 

election. 

• A union that seeks an election to displace an incumbent 

may not circumvent the certification bar rule by petitioning 

for a broader unit. See Bureau of Indian Affairs, Navajo 

Area, New Mexico, 1 A/SLMR 459 (1971). 
Office of the General Counsel 

Representation Case Law Guide October 2000 

If during the period normally covered by a certification bar, a 

collective bargaining agreement covering the claimed unit is 

pending agency head review under 5 U.S.C. 7114(c) or is in effect, 

other timeliness provisions in the regulations apply [see section 

2422.12(b) of the regulations]. 

 Assertions of Election and Certification Bars at Hearing: The 

determination of whether an election or certification bar precludes 

further processing of a petition is normally made during the initial 

processing of a petition since the FLRA Regional Offices maintain 

the records necessary to establish the pertinent dates. Thus, it is 

unusual to conduct a hearing on an election or certification bar 

issue. However, a party is not precluded from asserting an election 

or certification bar at hearing. 

Claims of Certification Bars in Successorship: The Authority 

has not had an opportunity to rule on certification bar issues that 

arise following the finding that a new employing entity is a 

successor to a previous one in which a labor organization retains 

its status as the exclusive representative of the employees who 

transferred to the successor. This issue is unresolved. See CHM 

58.3.21. NLRB cases may prove helpful in this area when 

researching the issue. See Citisteel USA, 312 NLRB 815 (1993); 

NLRB v. Burns Security Services, 406 U.S. 272 at 280 (1972); and 

Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, at 37 

(1987). 

B. Contract Bars 

Section 7111(f) prohibits according exclusive recognition to a labor 

organization: 

 (3) if there is then in effect a 

lawful written 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 
4

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. . . 

Absent unusual circumstances, the Authority will dismiss an 

election petition filed for a bargaining unit at a time when the unit is 

covered by a lawful written collective bargaining agreement, unless 

the agreement has been in effect for more than three years or the 

petition is filed during the 45-day “window period” set out in section 

7111(f)(3)(B) of the Statute. 

There are two basic issues in contract bar cases: 

(1) whether the agreement asserted to bar a petition is a lawful 

written collective bargaining agreement; and 

(2) whether the agreement is free from ambiguity regarding its 

effective date so that it constitutes a bar to an election 

petition. U.S. Department of Health and Human Services, 

Social Security Administration (SSA), 44 FLRA 230 (1992), 

citing Appalachian Shale Products, 121 NLRB 1160 (1958) 

and Department of the Navy, Navy Exchange, Miramar,

California, 6 A/SLMR 44 (1976). 

 1. Lawful written agreement: 

In SSA, the Authority stated that in order for an agreement to 

constitute a collective bargaining agreement that can bar the filing 

of a petition for exclusive recognition: 

an agreement must contain substantial 

terms and conditions of employment 

sufficient to stabilize the bargaining 

relationship between the parties to the 

agreement. 
Office of the General Counsel 

Representation Case Law Guide October 2000 

The Authority found that: 

• the mere fact that an agreement contains language

allowing the parties to reopen and modify the agreement’s 

provisions does not automatically disqualify the agreement 

as a bar. 

• contracts need not delineate every possible provision in 

order to contain sufficient terms to constitute a bar. 

A more difficult hearing situation is presented when a party, usually 

the petitioner, alleges that an agreement is not lawful. If the 

petitioner’s claims amount to allegations of unfair labor practice 

conduct, they are not appropriate for resolution in a representation 

proceeding. See Veterans Administration Center, Togus, Maine, 3 

A/SLMR 568, n.1 (1973). The Hearing Officer does not accept

any testimony or other evidence purportedly bearing on the 

motivation of a party or allegations involving unlawful 

considerations or actions in obtaining an agreement. If in doubt as 

to the nature and purpose of the offered evidence, the Hearing 

Officer questions the offering party on the record about his/her 

intentions and ask the party to make an offer of proof. See HOG 

28, Objections; HOG 29, Offers of Proof; and HOG 33.6, Attempt to 

litigate unfair labor practices. 
6

2. Effective Date: 

The effective date and duration of agreements are addressed in 

§ 2422.12(h) of the regulations, which states that collective 

bargaining agreements: 

...including those agreements that go into 

effect under 5 U.S.C. 7114(c) and those 

that automatically renew without further 

action by the parties, do not constitute a 

bar to a petition seeking an election under 

this section unless a clear and 

unambiguous effective date, renewal date 

where applicable, duration and termination 

date are ascertainable from the agreement 

and relevant accompanying 

documentation. 

This 1995 addition to the regulations tracks existing Authority case 

law, holding that any potential challenging party must be able to 

determine when the statutory open period will occur. Department 

of the Army, Concord District Recruiting Command, Concord, New 

Hampshire, 14 FLRA 73, 75 (1984). It is appropriate to read other 

documents in conjunction with the collective bargaining agreement 

such as the agency head’s approval of it in determining if the 

agreement contains a clear and unambiguous effective date. SSA, 

44 FLRA 230 (1992). 

An agreement to extend the terms of a collective bargaining 

agreement during negotiations for a successor agreement does not 

qualify as a bar to an election petition because “a temporary 

stopgap agreement does not constitute a final agreement of fixed 

duration and lacks the stability sought to be achieved by the 

agreement bar principle." Department of the Army, Corpus Christi 

Army Depot, Corpus Christi, Texas, 16 FLRA 281, 282-83 (1984). 

3. Time of filing a petition:

Existing contracts: When there is a contract having a valid 
Office of the General Counsel 

Representation Case Law Guide October 2000 

effective date, a contract is considered timely if filed during the 

open period as described in section 7111(f) of the Statute and §§ 

2422.12(d) and (e) of the regulations. NOTE: For calculating the 

window period of a contract for deciding whether a petition is 

timely, see Appendix B. 

New contracts: In Department of the Army, III Corps and Fort 

Hood, Fort Hood, Texas (Fort Hood), 51 FLRA 934, 941 (1996), the 

Authority decided that where a petition is filed on the same day that 

an agreement is executed, and all that remains is agency-head 

review pursuant to 5 U.S.C. 7114(c), the agreement does not act 

as a bar if certain requirements that are met at the time of 

execution. The notice to the agency: 

 

• must be in writing and convey that the petitioning 

union has taken all steps necessary to file a 

petition with the Authority. 

• must be served on a person having authority over 

agency negotiations, which could extend to and 

include the head of the agency, 

• must be received on the same day that the petition 

is filed but prior to the point at which the collective 

bargaining agreement is executed. 

Receipt of the notice must be verifiable through 

documentary evidence. (footnotes omitted) 

The region decides whether the petitioner followed these 

requirements. Once it has been established that the petition is 

timely and met the prima facie showing of interest requirements, it 

is given equivalent status. U.S. Department of Defense 

Dependents School, Panama Region, 44 FLRA 419 (1992). 

4. Effect of successorship on contract bars:

No cases have yet been filed in the Regions that raise issues 

concerning the effect of the predecessor’s agreement with the 
8

former exclusive representative on the gaining entity that has been 

found to be a successor employer under NFESC, 50 FLRA 363. 

This includes petitions raising issues regarding the effect of the 

parties prior agreement on the gaining entity and contract bar 

provisions. See CHM 58.3.22. Note however, under the former 

successorship rules, the Assistant Secretary sought case handling 

advice from the Federal Labor Relations Council on the following 

issue: 

Whether the Assistant Secretary can find that in a 

successorship situation the agreement bar which 

existed pursuant to the predecessor’s negotiated 

agreement with the exclusive representative may 

continue in effect after the reorganization so as to 

afford the successor employer and the exclusive 

representative a period of stability free from rival 

claims or other questions concerning majority 

status? U.S. Mortuary, Oakland Army Base, 

Oakland, California (U.S. Army Mortuary), 8 

A/SLMR 593 (1978). 

The FLRC stated that “[w]hile the gaining employer, as here, may 

not have assumed the predecessor’s agreement,15 and therefore 

no ‘agreement bar’ as such exists, we see no inconsistency with 

the purposes of the Order in the Assistant Secretary concluding 

that similar ‘bar’ principles preclude the raising of a rival claim or 

other questions concerning majority status.” U.S. Mortuary, 

Oakland Army Base, Oakland, California (U.S. Army Mortuary), 6 

FLRC 330 (1978). The FLRC provided the Assistant Secretary 

with the following advice: 

the Assistant Secretary may interpret and apply his

existing agreement bar rules or prescribe 

 

15As the Council stated in DSA (3 FLRA at 803), a ‘successor’ is not ‘required 

to adopt and be bound by any agreement which may have been entered into 

between the losing employer and the incumbent union.’ (Rather, the successor 

is enjoined to maintain recognition and toadhere to the terms of the prior 

agreement to the maximum extent possible.”
Office of the General Counsel 

Representation Case Law Guide October 2000 

analogous rules to find that in a successorship 

situation the agreement bar which existed pursuant 

to the predecessor ‘s negotiated agreement with 

the exclusive representative may continue in effect

after the reorganization so as to afford the gaining 

employer and the exclusive representative a period 

of stability free from rival claims or other questions 

concerning representation. U.S.Army Mortuary, 6 

FLRC at 335; and 8 A/SLMR at 595. 

 5. Effect of Section 7114(c) Agency Head Review: 

The Statute provides for agency head approval of collective 

bargaining agreements in section 7114(c). Section 2422.12(c) of 

the regulations imposes a bar on the filing of an election petition 

during the agency head review period. See also Federal Aviation 

Administration, 2 A/SLMR 340 (1972); Federal Aviation 

Administration, Case No. 22-3711(RO), 1 Rulings on Requests for 

Review 258 (1973). Pursuant to section 7114(c) of the Statute, if 

the agency head does not approve or disapprove the agreement 

within 30 days of the date it was executed, the agreement takes 

effect automatically on the thirty-first day after execution. The 

Authority has held that for purposes of triggering the time targets 

for section 7114(c) review, the date of execution is the date on 

which no further action is necessary to finalize a complete 

agreement. Fort Bragg Association of Teachers and U.S. 

Department of the Army, Fort Bragg Schools, Fort Bragg, North 

Carolina, 44 FLRA 852 (1992).

Issues concerning agency head approval of an agreement may 

arise in contract bar cases. Contracts may take effect either upon 

the date of the agency head approval provided for in section 

7114(c) of the Statute or, as noted previously, in cases where the 

agency head fails to act within the 30-day period specified by 

section 7114(c), on the 31st day after the contract was executed by 

the local parties. The date on which the contract was approved by 

the agency head may have to be discovered from another 

document, typically a letter giving agency head approval. 

If the agency head timely disapproves the agreement or a portion 
10

of the agreement, there is no agreement that is binding on the local 

parties and, consequently, no bar to an election petition. U.S. 

Department of the Army, Watervliet Arsenal, Watervliet, New York 

(Watervliet), 34 FLRA 98, 105 (1989). The parties may agree to 

implement all portions of their local agreement not specifically 

disapproved by the agency head. If the parties agree to revise the 

disapproved portions, rather than implementing the portions of the 

agreement which were approved, no bar exists until a full and final 

agreement is executed that triggers the 7114(c) process. See 

Watervliet at 105. 

6. Contracts Containing Automatic Renewal Clauses: 

Generally, an automatic renewal clause in a collective bargaining 

agreement provides that the agreement continues in effect after its 

expiration date, if no action to amend or terminate the agreement is 

taken within a specified period prior to its expiration date. The 

presence of automatic renewal language in an agreement creates 

special problems in contract bar situations that the Authority 

addressed in Kansas Army National Guard, Topeka, Kansas

(Kansas ARNG), 47 FLRA 937 (1993). 

Automatically renewed agreements, like initial agreements, are 

subject to section 7114(c) agency head review. The determination 

of and relationship between the execution and effective dates of an 

automatically renewed agreement often operate differently than 

those involved in an initial or renegotiated agreement. The 

principles that apply to the operation of section 7114(c) in the 

context of an initial or renegotiated agreement are incompatible 

with some of the fundamental aspects of agreements that are the 

result of automatic renewal. See Kansas ARNG, at 942. 

In the context of an agreement that is being negotiated for the first 

time or one that is being renegotiated, the Authority has held that 

for purposes of triggering the time limits for section 7114(c) review, 

the execution date is the date on which no further action is 

necessary to finalize a complete agreement. In initial or 

renegotiated agreements, this is the date the parties sign off on the 

agreement. Once execution occurs, if the agency head neither 

approves nor disapproves the agreement within the prescribed 30-

day period, the agreement takes effect automatically on the thirty-
Office of the General Counsel 

Representation Case Law Guide October 2000 

first day after execution. Fort Bragg Association of Teachers and 

U.S. Department of the Army, Fort Brag Schools, Fort Bragg, North 

Carolina, 44 FLRA 852 (1992). 

Generally, an automatic renewal provision of a contract provides 

that the contract shall continue in effect after its expiration date if 

no action to amend or terminate it is taken within a specified period 

prior to its expiration date. In Kansas ARNG, the date which 

triggered agency head review was the point at which the time limits 

for making a request to negotiate the agreement expired with no 

timely request forthcoming. Thus, the period for agency head 

review commenced on the day after the expiration of the 

contractual window period for requesting renegotiation of the 

expiring agreement, and ended thirty days thereafter, well before 

the effective date of the renewed agreement. Unlike initial or 

renegotiated agreements, the effective date of the agreement is 

not necessarily the date of approval or the thirty-first day after 

execution. Rather, the effective date is the date previously set by 

the parties for the renewal of the agreement. The Authority found 

that this interpretation of section 7114(c) preserves the uniformity 

of the anniversary date and permits the orderly and predictable 

operation of automatic renewal provisions of collective bargaining 

agreements. 

Simply put, contracts containing automatic renewal clauses are 

effective on the day the parties previously established for renewal. 

They are not dependent on the date of approval of the contract 

under section 7114(c) of the Statute as are initial agreements. For 

example, in Kansas ARNG the parties negotiated an agreement in 

1989 that included a duration clause that stated: 
12

This agreement shall be in full force and effect for 

three (3) years from the date of National Guard 

approval or thirty-one (31) days after the date of 

the signature of the parties, whichever is earlier. 

This agreement shall be renewed for an additional 

three year period on each third anniversary date 

thereafter, subject to NGB re-review and approval, 

unless either party gives written notice to the other, 

not more than 90 days or less than 60 days prior to

the expiration date, of their desires to renegotiate 

provisions of the agreement. 

The agreement was approved by the NGB on April 11, 1989. The 

contractual window period for requesting to renegotiate the contract 

expired on February 10, 1992. The period for agency head review 

commenced on February 11, 1992, and ended 30 days thereafter 

on March 11,1992, well before the effective date of the renewed 

agreement. The record in Kansas ARNG does not establish that 

the parties intended finalizing the agreement to be dependent on 

further action. Therefore, the renewed agreement between the 

parties was for a 3-year term, beginning on April 11,1992. 

It is important to note that in all contract bar cases, including those 

involving automatic renewal clauses, decisions on timeliness are 

based on the specific contract, facts and circumstances present in 

the particular case. A petitioning union may have to consult a 

source other than the agreement itself to determine whether the 

agreement was automatically renewed. Consistent with SSA, 44 

FLRA 230 (1992), the necessity of checking other sources does not 

preclude an automatically renewed agreement from serving as a 

bar to an election petition that is not filed within the section 

7111(f)(3)(B) “window period.” Thus, a petitioner may have to 

obtain documents in addition to the collective bargaining 

agreement to decide, for example, if there was a timely request to 

renegotiate or timely disapproval by the agency head. Kansas 

ARNG at 944. 

7. Requests To Renegotiate: 

Certain contracts provide for automatic renewal if neither party 
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Representation Case Law Guide October 2000 

requests to renegotiate the agreement within a specified period of 

time. A timely request by either party to renegotiate or modify the 

agreement prevents automatic renewal and precludes the 

agreement from serving as a bar to an election petition filed after 

the expiration of the agreement, even if no negotiations ever take 

place. U.S. Department of Defense, Army National Guard, Camp 

Keyes, Augusta, Maine, 34 FLRA 59 (1989). 

8. Ratification Votes: 
14

Ratification of a contract by the union’s membership is not a 

requirement under the Statute in order for an agreement to become 

effective. However, this issue may arise at hearings involving 

contract bar or automatic renewal issues, when the parties have 

agreed either by written agreement, such as a ground rules 

agreement, or through acquiescence that the agreement must be 

ratified to become effective. Department of the Navy, Norfolk 

Naval Shipyard, Portsmouth, Virginia, 13 FLRA 571 (1984); U.S. 

Department of Commerce, Bureau of the Census, 17 FLRA 667 

(1985). 

9. Premature Extensions: 

An agreement executed by the parties more than sixty days before 

the expiration of the current agreement is premature for contract 

bar purposes since it would modify or extinguish the 45-day 

“window period” established by section 7111(f)(3)(B) of the Statute. 

Section 2422.12(g) of the regulations provides that: 

 Where a collective bargaining 

agreement with a term of three (3) years or 

less has been extended and signed more 

than sixty (60) days before its expiration 

date, the extension will not serve as a 

basis for dismissal of a petition seeking an 

election filed in accordance with this 

section. 

Accordingly, the Authority does not recognize such a premature 

extension of an agreement as a bar to an election petition. See 

Department of Health and Human Services, Boston Regional 

Office, Region I, 12 FLRA 475 (1983). The premature extension 

analysis applies solely to the extension of agreements having a 

term of three years or less. If an agreement has a term of more 

than three years, it serves as a bar to an election petition only 

during its initial three year period. See section 2422.12(e) of the 

regulations. 

C. Unusual Circumstances

Section 2422.12(f) of the regulations states “a petition seeking an 
Office of the General Counsel 

Representation Case Law Guide October 2000 

election or a determination relating to representation matters may 

be filed at any time when unusual circumstances exist that 

substantially affect the unit or majority representation.” See 

Department of State, Bureau of Consular Affairs, Passport 

Services, 35 FLRA 1163 (1990); U.S. Department of the Interior, 

Indian Health Service, Gallup Indian Health Center, Gallup, New 

Mexico, 48 FLRA 890 (1993). 

Petitions seeking resolution of matters related to representation 

(e.g., petitions questioning if a current unit continues to be 

appropriate because of a substantial change in the character and 

scope of the unit) are usually filed at the time of the organizational 

changes, events not necessarily timed to coincide with contractual 

window periods. The filing of such a petition during the term of a 

contract is taken as an assertion that unusual circumstances exist, 

whether or not the petitioner actually uses this term of art. 

For detailed discussion of specific situations involving unusual 

circumstances, see RCL 4 - Good Faith Doubt of Majority Status 

and RCL 3C - Accretion. 

D. Effect of Dismissal, Withdrawal or Disclaimer on Subsequent 

Petitions 

Certain time bars to the filing of petitions apply in situations where 

a party previously filed and then withdrew a petition for an election. 

1. Bar after Withdrawal or Dismissal of Petition: 

Section 2422.14(a) of the regulations provides that, when a petition 

seeking an election that has been timely filed is withdrawn by the 

petitioner or dismissed by the Regional Director less than sixty (60) 

days prior to or following the expiration of an existing agreement, 

another petition seeking an election is not timely if filed within a 

ninety (90) day period from either: 

a. the date the withdrawal is approved; or 

b. the date the petition is dismissed by the Regional Director 

when no application for review is filed with the Authority; or 

c. the date the Authority rules on an application for review. 
16

Other pending petitions that have been timely filed

continue to be processed. 
Office of the General Counsel 

Representation Case Law Guide October 2000 

2. Bar after Withdrawal of Petition after Issuance of 

Notice of Hearing: 

Section 2422.14(b) of the regulations provides that a petitioner who 

submits a withdrawal request for a petition seeking an election that 

is received by the Regional Director after issuance of a notice of 

hearing or approval of an election agreement, whichever comes 

first, will be barred from filing another petition seeking an election in 

the same unit or any subdivision of the unit for six (6) months of the 

date of approval of the withdrawal by the Regional Director. This 

provision applies whenever an election agreement is approved, 

including those approved after the close of a hearing. 

3. Bar after the Filing of a Disclaimer: 

Section 2422.14(c) provides that when an election is not held 

because the incumbent disclaims any representational interest in a 

unit, a petition by the incumbent seeking an election in the same 

unit or a subdivision of the same unit will not be timely if filed within 

six (6) months of cancellation of the election. 

E. The effect of a contract on other timeliness issues that may 

arise in election cases. 

There are no Authority decisions on the issues identified 

below. Thus, these issues are unresolved. See CHM 58.3.23. 

The Region obtains all pertinent information informally from the 

parties. In considering representation case issues for which no 

Authority precedent exists, under section 7135(b) of the Statute, a 

decision of the Assistant Secretary of Labor for Labor Management 

Relations remains in full force and effect unless it has been revised 

or superseded by decisions issued pursuant to the Statute. FNG I, 

25 FLRA 728 (1987). In addition, the Authority has stated that it 

may be appropriate to consider case law developed under the 

National Labor Relations Act. Coast Guard, 34 at 952, 953. 

Filing a petition untimely: Section 2422.14(a) discusses bars for 

refiling petitions that are timely filed initially and later withdrawn or 

dismissed. This regulation does not discuss petitions which are 
18

untimely filed initially. 

 
Office of the General Counsel 

Representation Case Law Guide October 2000 

 Amendment of petition: Regional Directors may be required to 

consider the timeliness of amended petitions. See General 

Services Administration, Region 4, 6 A/SLMR 272 (1976). Cases 

decided by the NLRB reflect that the filing date of the original 

petition is controlling as to timeliness where the amendment does 

not substantially enlarge the character or size of the unit or number 

of employees in the unit and where the employers, operations and 

employees were contemplated in the original petition. Deluxe 

Metal Furniture Co., 121 NLRB 995 (1958); Illinois Bell Telephone 

Co., 77 NLRB 1073 (1948). However, where the amendment

materially changes the unit, the Board found the date of the 

amended petition controlling when the original petition sought a 

single craft in a departmental unit, but was amended to seek a 

broader production and maintenance unit. Hyster Co., 72 NLRB 

937 (1947). In Allied Beverage Distributing Co., 143 NLRB 149 

(1963) the Board used the date of the amended petition as the date 

of filing when the original petition misnamed the employer in a 

material manner. 

See HOG 48 for specific guidance on developing a record 

about this topic at hearing.

References:

Where agreements to extend a collective bargaining agreement 

during negotiations do not serve as a bar: 

 Department of Health and Human Services, Region IX, San 

Francisco, California, 12 FLRA 183 (1983). 

U.S. Department of Defense, Army National Guard, Camp Keyes, 

Augusta, Maine, 34 FLRA 59 (1989). 

Where by the terms of a collective bargaining agreement, a request 

to renegotiate an agreement prevented the automatic renewal of 

the contract: 

Office of the Secretary, Headquarters, Department of Health and 

Human Services, 11 FLRA 681 (1983). 
20

Ambiguity as to effective date of contract: 

U.S. Department of the Interior, Redwood National Park, Crescent 

City, California, 48 FLRA 666 (1993) (a contract that became 

effective when it was approved by the agency head on June 2, 

1998 was not a bar because of a reproduction error that made the 

effective date in the published copy of the agreement appear to 

read, “June 12, 1988"). 

 Florida Air National Guard, St. Augustine, Florida, 43 FLRA 1475 

(1992) (an agreement showing two different dates of approval by 

the agency head was not a bar to a petition). 

Other considerations: 

Although parties may waive their right to assert a contract bar, a 

contract bar may not be waived unilaterally by one of the parties to 

the collective bargaining agreement. Department of Defense, 

Overseas Dependent Schools, 1 A/SLMR 516 (1971). 
Office of the General Counsel 

Representation Case Law Guide October 2000 

Office of the General Counsel 

Representation Case Law Guide October 2000 

1

13 Unit consolidation

Section 7112(d) of the Statute provides for the consolidation of 

existing units: 

 (d) Two or more units which are in 

an agency and for which a labor 

organization is the exclusive 

representative may, upon petition by the 

agency or labor organization, be 

consolidated with or without an election 

into a single larger unit if the Authority 

considers the larger unit to be appropriate. 

The Authority shall certify the labor 

organization as the exclusive 

representative of the new larger unit. 

A. Consolidation of Units under Executive Order 11491, as 

amended 

Consolidation of units originally resulted from a recommendation 

submitted by agencies and labor organizations in 1975 to the 

Federal Labor Relations Council (Council) when it considered 

proposing amendments to Executive Order 11491. The Council 

adopted a policy which provided for the consolidation of existing 

units into a single more comprehensive unit. The Council 

concluded that this policy would reduce fragmentation in bargaining 

unit structures and foster the development of a sound Federal 

labor-management relations program. 

1. Standard: 

The Council set forth several guidelines for unit consolidation that 

later formed the basis for the initial implementing regulations. 

Although the implementing regulations have been streamlined and 

revised, the guidelines remain valid: 

a. An agency and a labor organization may agree bilaterally 
2

to consolidate, with or without an election, those bargaining 

units represented by the labor organization within the 

agency. 

b. The proposed consolidated unit must conform to the 

appropriate unit criteria. 

c. If there is no bilateral agreement, either party may petition 

to consolidate its units. 

d. A consolidation may occur with or without an election. 

e. Affected employees should be given adequate notice of a 

proposed bilateral consolidation, with the right to petition to 

hold an election on the issue of the proposed 

consolidation. 

f. A labor organization seeking an election on a proposed 

consolidation of existing units does not lose its status as 

the exclusive representative in the existing unit if the 

employees reject the consolidation. 

g. Election bars, certification bars, and agreement bars do not 

apply when parties seek to consolidate existing exclusive 

recognitions. 

h. The procedure for consolidating a labor organization’s 

existing exclusively recognized units applies only to 

situations where there is no question as to whether the 

union represents the employees in the proposed 

consolidated unit. 

2. Regulations: 

The Assistant Secretary’s regulations that implemented section 

10(a) of Executive Order 11491, as amended, did not include a 

provision that specifically permitted the activity(ies) or the agency 

to file a petition to consolidate existing exclusively recognized units 

unless there was a bilateral agreement to do so. On the other 

hand, neither the Executive Order nor the implementing regulations 
Office of the General Counsel 

Representation Case Law Guide October 2000 

prohibited an agency from filing a consolidation petition absent a 

request to recognize such a unit. 

B. Consolidation Provisions under the Statute 

Consistent with section 7112(d), the following elements must be 

present in order for consolidation to occur: 

• There are two or more units in the same agency; 

• A labor organization holds exclusive recognition for these 

units; 

• A petition is filed by the agency or the labor organization; 

and 

• The larger, consolidated unit is appropriate pursuant to 

section 7112(a) of the Statute. 

Thus, the plain language of the Statute provides for a petition to be 

filed by an agency or a union. However, the Statute also requires 

that the petition be for units “for which a labor organization is the 

exclusive representative.” The legislative history of the Statute is 

clear that agencies are allowed to file petitions to consolidate, [See 

Legislative History of the Federal Service Labor-Management 

Relations Statute, Title VII of the Civil Service Reform Act of 1978,

S. Rep. No. 95-969, at 763 (1978) and H. Rep. No. 95-1403, at 

693] and that section 7112(d) “should better facilitate the 

consolidation of small units.” [124 Cong. Rec. H 9634 (daily ed. 

Sept. 13,1978) (statement by Rep. Udall)]. It is not clear, however, 

whether the unions must agree to the consolidation. The legislative 

history sheds no light on this issue. 

The current regulations eliminated any pre-filing requirements for 

petitions to consolidate. Section 2422.2(c) of the regulations 

provides that only an agency or a labor organization may file a 

petition to consolidate existing units for which a labor organization 

holds exclusive recognition. The regulations provide no specific 

guidance on processing consolidation petitions and the 

supplementary information that accompanied the proposed 

regulations and the final regulations shed no light on the issue. 
4

The supplementary information related to § 2422.2 accompanying 

the proposed regulations stated that the “[c]urrent pre-filing 

requirements applicable to UC petitions are eliminated.” Federal 

Register, Vol. 60, No. 150 ( August 4, 1995), The supplementary 

information accompanying the final regulations was silent on 

processing petitions to consolidate units. Federal Register, Vol. 60, 

No. 250 (December 29, 1995). 

1. Agency standing to file petition: 

One of the unresolved questions that has been recently raised in a 

petition is whether the exclusive representative of units in an 

agency or the national union must agree to the consolidation when 

an agency files the petition. Until the Authority decides this issue, 

Regions take the position that an Agency has standing to file a 

petition to consolidate units for which a national union holds 

certification even if the certification is held by locals of the same 

national union in separate units. If the unions involved in the 

petition object to the consolidation, the Regional Director issues a 

Notice of Hearing on two issues: 

a. whether the Agency/Activity has standing to file when the 

unions object and 

b. whether the proposed consolidated unit is appropriate 

pursuant to section 7112(a). 

The issue of whether the national union has authority to file a 

consolidation petition even though the locals hold the certification 

has already been decided: 

2. A National Union Can File a Petition to Consolidate 

Units Represented by Local Affiliates under Section

7112(d) of the Statute

Under both the Executive Order program and under the Statute, 

the term “labor organization” when used for describing the 

consolidation of units has been interpreted to include a national 

union that seeks to consolidate units for which its local chapters 

hold exclusive recognition. In Internal Revenue Service (IRS), 7 

A/SLMR 357 (1977) aff’d Internal Revenue Service, Washington, 

DC and National Treasury Employees Union, 6 FLRC 289, n. 2 
Office of the General Counsel 

Representation Case Law Guide October 2000 

(1978), the Assistant Secretary found that there was nothing in the 

Order, the FLRC Report, or the regulations that required the 

Assistant Secretary to challenge the authority of a national labor 

organization to file a unit consolidation petition on behalf of its 

exclusively recognized local chapters. Further, the Assistant 

Secretary found that the affected employees would be protected 

from arbitrary action by a national organization seeking a 

consolidation by the provisions of the Order and the Assistant 

Secretary’s regulations which provided for an election on the 

question of any proposed consolidation at the request of either 

party or 30 percent or more of the affected employees. The FLRC 

affirmed the Assistant Secretary’s decision that a national labor 

organization does not need local authorization to file a 

consolidation petition on behalf of its constituent local chapters. 

The Authority also has allowed a national union to consolidate local 

units. See U.S. Department of the Air Force, Air Force Materiel 

Command, Wright-Patterson Air Force Base, Ohio (AFMC), 55 

FLRA 359, 361 (1999) (citation omitted) (Authority approved a 

consolidation where a national union sought to consolidate one 

consolidated unit and six units represented by local affiliates).16

 

 

16Moreover, there does not appear to be any rule to preclude two different 

labor organizations from jointly filing a petition to consolidate their units as long 

as the consolidation occurs within a single agency and meets the appropriate 

unit criteria. 
6

3. Concepts of Unit Consolidations: 

< In AFMC, 55 FLRA at 362, the Authority stated that Section

7112(d) of the Statute permits consolidation of two or more 

bargaining units represented by the same exclusive representative 

"if the Authority considers the larger unit to be appropriate." This 

provision was intended by Congress to "better facilitate the 

consolidation of small units" into more comprehensive ones. 

Department of Transportation, Washington, DC (DOT), 5 FLRA 

646, 652 (1981) (quoting 124 Cong. Rec. H9634 (daily ed. Sept. 

13, 1978) (statement of Representative Udall)). Consolidation 

serves a statutory interest in reducing unit fragmentation and in 

promoting an effective, comprehensive bargaining unit structure. 

See Army and Air Force Exchange Service, Dallas, Texas and 

American Federation of Government Employees (AAFES), AFLCIO, 5 FLRA 657, 661-62 (1981); Air Force Logistics Command, 

United States Air Force Wright-Patterson Air Force Base, Ohio and 

International Association of Fire Fighters,(AFLC Council), AFL-CIOCLC, (AFLC), 7 FLRA 210, 214 (1981). 

Previously, case law implied that the purpose of a unit 

consolidation petition was to consolidate all units within an agency 

for which a particular union holds exclusive recognition. See DOT,

5 FLRA at 652 (1981) (Authority denied a petition to consolidate 

five field units for which a union held recognition and one unit 

where recognition was at the national union on the basis that the 

proposed unit would not ensure a clear and identifiable community 

of interest nor promote effective dealings and efficiency of 

operations. The Authority noted the small dispersion of field 

employees compared to headquarters employees. The Authority 

also noted that the petitioner did not seek to include in the 

proposed consolidated unit all of the field employee units it 

represented. However, the Authority, in the alternative, considered 

whether a consolidated unit of only headquarters employees would 

be appropriate and denied that also.) In AFMC, 55 FLRA at 360, 

the Authority found a petitioner’s request to consolidate six of 

seven individual units with its national consolidated unit effectuated 

the purposes of the Statute and consolidation stating: 
Office of the General Counsel 

Representation Case Law Guide October 2000 

The purpose of consolidation is to reduce 

fragmentation of units. See AAFES, 5 FLRA at 

661-62. The Authority has never imposed a 

requirement that a consolidation petition eliminate

unit fragmentation. The consolidation of six AFGE 

bargaining units into the current consolidated unit

reduces unit fragmentation. The fact that one 

bargaining unit was not included in the proposed 

consolidation indicates that a different petition 

might have reduced unit fragmentation even more 

than the petition presented; it does not establish 

that the current petition does not reduce unit 

fragmentation. 

 

< The reference in section 7112(d) to the consolidation of 

"appropriate" units incorporates the appropriate unit criteria 

established in section 7112(a). Those criteria provide that a unit 

may be determined to be appropriate if it will: (1) ensure a clear 

and identifiable community of interest among the employees in the 

unit; (2) promote effective dealings with the agency involved; and 

(3) promote efficiency of the operations of the agency involved. 5 

U.S.C. §§ 7112(a). The Authority has identified a number of factors 

that generally indicate whether these statutory criteria are met, see

generally, United States Department of the Navy, Fleet and 

Industrial Supply Center, Norfolk, Virginia (FISC), 52 FLRA 950, 

960-61 (1997), and has consistently applied certain of these factors 

in consolidation cases. See U.S. Department of Justice, 17 FLRA 

58, 62 (1985); AAFES, 5 FLRA at 660; DOT, 5 FLRA at 652. The 

Regional Director determines whether the proposed consolidated 

unit conforms to the appropriate unit criteria and that there is no 

question as to whether the labor organization represents the 

employees in the proposed consolidated unit. 

 

< Any unit found appropriate for consolidation must conform to the 

unit descriptions of the current exclusively recognized units. 

Education Division, Department of Health, Education and Welfare, 

Washington, D.C., 7 A/SLMR 312 (1977). 

< In determining whether a proposed consolidated unit will ensure a 

clear and identifiable community of interest, the following factors 

are considered: 
8

• the degree of commonality and integration of the 

mission and function of the components involved, 

(“separate missions of each component need only ‘bear a 

relationship’ to one another, and the functions need only 

‘similar or supportive’ to warrant consolidation.” 

Department of the Navy, U.S. Marine Corps and American 

Federation of Government Employees, AFL-CIO 

(Department of the Navy), 8 FLRA 15, 22 (1982). See also

AAFES, 5 FLRA at 661 stating that "while the [agency] 

pointed out the distinct role played by the Distribution 

Regions, it is clear that their function is integrally related to 

that of the Exchange Regions"). 

• the distribution of employees throughout the 

organizational and geographic components of the agency, 

• the degree of similarity of occupational 

undertakings of the employees in the proposed 

consolidated unit, and 

• the locus and scope of personnel and labor 

relations authority and functions. U.S. Department of 

Justice, 17 FLRA 58, 62 (1985). 

< In determining whether a proposed consolidated unit will promote 

effective dealings with and efficiency of operations of the agency, 

the Authority looks at whether: 

• the employees in the proposed unit are subject to the same 

operational chain of command, 

• the degree and nature of functional and organizational 

integration, 

• employee interchange and job similarity, and 

• common or uniform policies regarding personnel and labor 

relations apply throughout the existing units. Naval

Submarine Base, New London Naval Submarine School, 

Navy Submarine Support Facility New London, Personnel 

Support Activity New London and Naval Hospital Groton, 

46 FLRA 1354 (1993). 

See HOG 49 for specific guidance on developing a record 

about this topic at hearing.

C. Other references :
Office of the General Counsel 

Representation Case Law Guide October 2000 

Community of interest:

Department of Defense, U.S. Army Corps of Engineers, 5 FLRA 

677 (1981). [consolidation denied - represented employees not 

sufficiently well-distributed throughout the administrative and 

geographic structure of the Agency so as to constitute a meaningful 

consolidated unit of all the Agency employees represented by the 

Petitioner; the unit sought enjoys no common thread of shared 

missions, but rather a wide diversion of disparate missions based 

largely on local geographic conditions; the records also reflected a 

complete lack of commonality with regard to job classifications and 

working conditions] 

 

U.S. Army Training and Doctrine Command, 11 FLRA 105, 109 

(1983); [consolidation denied; proposed unit limited to 5 of the 17 

TRADOC installations, and the union did not represent all of the 

employees at any of the five. Most of the employees included in 

the petition, making up only about 15% of the workforce have 

different job classifications and working conditions because of the 

uniqueness of the mission. Moreover, personnel authority and 

control of labor relations have historically been delegated to each 

local installation.] 

Department of the Air Force, Air Training Command, Randolph 

AFB, TX, 12 FLRA 261, 265 (1983); [petition to consolidate NFFE 

units at the activity denied where Authority found that the 

employees were involved in disparate missions requiring different 

job skills, classifications and duties; are not involved in an 

integrated work process; and do not transfer or interchange among 

the existing units. Additionally, the proposed consolidated unit 

would be limited to only 5 of the Activity’s 14 geographical 

locations, constituting only 10% of the activity’s total civilian 

workforce. Authority and control over personnel and labor relations 

matters historically have been delegated to each local installation 

commander.] 

Department of Health and Human Services, 13 FLRA 39, 42 

(1983); [petition to consolidate 4 of HHS 10 regional offices denied 

where employees not sufficiently well distributed throughout the the 

administrative and geographic structure of the agency so as to 
10

constitute a meaningful consolidated unit. Cited other reasons not 

dissimilar to above.] 

 

U.S. Army Support Command, Hawaii, 13 FLRA 529, 532 (1983); 

[units represented by IAM were subject to a reorganization and as 

a result, the Authority denied consolidation stating that a unit 

consolidation petition was not the proper vehicle for clarifying 

previously recognized or certified units to reflect changes caused 

by reorganizations. Thus, the employees do not share, with each 

other or with other employees in the proposed consolidated unit 

common mission, supervision, or uniform personnel practices or 

labor relations policies. The Authority found that the proposed unit 

would not ensure a clear and identifiable community of interest.] 

Headquarters, U.S. Army Materiel Development and Readiness 

Command, 13 FLRA 679, 682-83 (1983); [the Authority denied

proposed consolidated based on the limited representation across 

the agency’s organization lines for the same reasons cited above.] 

U.S. Department of Justice, 17 FLRA at 62. [the Authority denied 

consolidation proposed by AFGE citing that the proposed 

consolidated unit encompasses only 3 of 6 bureaus, fragments of 

the OBDs, which were organizationally treated as a bureau, and an 

independent agency; further most of the employees, representing 

31% of the work force have divergent career interests and working 

conditions (attributable to the diverse missions of their respective 

organizational components). The record reflected a minimal 

amount of interchange of employees and the majority of job 

classifications and qualifications as well as the terms and 

conditions of employment related to the unique functions of the 

particular organizations in which they were employed.] 

Effective dealings/Efficiency of operations: 

AAFES, 5 FLRA 657, 661-662 (1981); [consolidation granted. The 

Authority found that employees in proposed unit are sufficiently 

well-distributed throughout the organizational and geographical 

elements which make up AAFES so as to constitute a meaningful 

consolidated unit of all AAFES employees who are represented by 
Office of the General Counsel 

Representation Case Law Guide October 2000 

the petitioner. The Authority found that AAFES is an integrated 

organization with basically a single primary mission, providing retail 

facilities for eligible users and thus its employees are engaged in 

relatively similar functional and occupational undertakings 

throughout the organization. Further, the Authority found that 

personnel and labor relations authority is centralized extant within 

AAFES, and AAFES establishes broad policies at the national 

level. As a result, the Authority found the proposed unit promoted 

effective dealings and efficiency of operations.] 

Air Force Logistics Command, U.S. Air Force, Wright-Patterson 

AFB, Ohio, 7 FLRA 210, 213 (1981); [granted consolidation to units 

of firefighters - finding that the proposed consolidated unit, which 

encompasses all of the fire prevention units of AFLC except those 

represented by AFGE is appropriate for the reasons cited in 

AAFES. All of the employees represented by the petitioner were 

within the proposed unit, perform a unique job function, have 

common overall supervision at the AFLC level and share 

essentially similar job classifications and organization, and uniform 

program direction, personnel policies and practices and labor 

relations practices. The Authority found that the unit would also 

promote effective dealings because the prosed unit is activity-wide, 

the employees are sufficiently distributed throughout the 

organization, so as to constitute a meaningful consolidated unit, 

and that AF regulations establish personnel and labor relations 

policy within all of AFLC whose program direction comes from the 

AFLC level. Finally the Authority stated that the AFLC Fire 

Program Manager provides overall guidance and expertise to the 

components within the proposed unit and the major fire protection 

program policies are established by the AF to ensure 

standardization. Thus, the Authority stated that the proposed 

consolidated unit will promote a more comprehensive, effective 

bargaining unit structure and will reduce unit fragmentation and 

thus promote efficiency of agency operations.] (Emphasis added) 

Department of the Navy, U.S. Marine Corps, 8 FLRA 15, 23 (1983). 

[granted consolidation based on the following factors: degree of 

commonality and integration of the mission and function of the 

components involved; the distribution of the employees in the 

proposed unit; and the locus and scope of personnel and labor 
12

relations authority and functions. The consolidated unit will provide 

for bargaining in a single unit rather than in the existing 22 units, 

thereby reducing fragmentation and promoting a more effective, 

comprehensive bargaining unit structure to effectuate the purposes 

of the Statute.] (Emphasis added) 

NOTE: in last two cases cited, the Authority granted the 

consolidation noting that in addition to other factors, all units 

represented by the petitioner at the time of the proposed 

consolidation were included in the petition. 

Department of Defense, National Guard Bureau and National 

Federation of Federal Employees, Independent, Department of 

Defense, National Guard Bureau and National Association of 

Government Employees, 13 FLRA 232 (1983). 

U.S. Customs Service, 8 A/SLMR 221 (1978).

U.S. Department of Defense, National Guard Bureau, 55 FLRA 657 

(1999). 

U.S. Department of Treasury, Internal Revenue Service and U.S. 

Department of the Treasury, Office of the Chief Counsel, Internal 

Revenue Service, 56 FLRA 486 (2000).
Office of the General Counsel 

Representation Case Law Guide October 2000 

1

14 Units including supervisors 

Section 7135 of the Statute states the circumstances in which 

recognition may be granted or continued in units which include 

supervisors. Section 7135(a)(2) provides that nothing shall 

preclude: 

the renewal, continuation or initial 

according of recognition for units of 

management officials or supervisors 

represented by labor organizations which 

historically or traditionally represent 

management officials or supervisors in 

private industry and which hold exclusive 

recognition for units of such officials or 

supervisors in any agency on the effective 

date of this chapter. 

 Mixed units of supervisors and nonsupervisory personnel: 

The Authority’s view that section 7135(a)(2) permits the “grand 

fathering" of mixed units of both supervisory and nonsupervisory 

personnel has been rejected by the courts. United States 

Department of Energy v. FLRA (Department of Energy), 880 F.2d 

1163 (10th Cir. 1989), noting that section 7112(b)(1) of the Statute 

prohibits supervisors from being included in bargaining units 

established under the Statute unless their inclusion is expressly 

authorized by section 7135(a)(2) of the Statute. The court held that 

section 7135(a)(2) allows the Authority "to recognize only exclusive 

units of supervisors, not mixed units." Id. at 1167 (footnote 

omitted). See also U.S. Department of Energy, Western Area

Power Administration, Golden, Colorado v. FLRA, No. 87-2062 

(10th Cir. 1989). 

However, the continuation of mixed units of supervisory and 

nonsupervisory personnel has been found to be a permissive 

subject of bargaining. U.S. Department of Interior v. FLRA, 23 F.3d 

518 (DC Cir. 1994). Thus, if a union has historically represented 

such a mixed unit, the agency may agree in bargaining to continue 

to recognize the mixed unit, but is not required to do so. Similarly, 
2

the agency may timely notify a union that it no longer wishes to be 

bound by a prior agreement in this permissive area of bargaining. 

See also, U.S. Department of Interior v. FLRA, 26 F.3d 179 (DC 

Cir. 1994) further discussing the permissive nature of bargaining 

over continued inclusion of supervisors in mixed units. 
Office of the General Counsel 

Representation Case Law Guide October 2000 

3

 Units limited to supervisors: The Authority will permit exclusive 

recognition in a unit consisting solely of supervisors in very limited 

circumstances in which a labor organization has: 

 

a) traditionally or historically represented units of 

supervisors in private industry and 

 b) held exclusive recognition for a unit of supervisors 

in a federal agency on the effective date of the 

Statute. 

 See Department of Energy, Western Area Power Administration, 

38 FLRA 935 (1990). 

 

It is anticipated that few, if any, petitions will be filed concerning the 

establishment of either mixed units or supervisor-only units. If 

petitions are filed seeking to exclude supervisors from existing 

mixed units, relevant information would include evidence to show 

whether the agency gave timely notice to the union of its intention 

to remove supervisors from the existing mixed unit. 

See HOG 50 for specific guidance on developing a record 

about this topic at hearing.

Office of the General Counsel 

Representation Case Law Guide October 2000 

1

 EMPLOYEE CATEGORIES 

RCL 15 through RCL 28 

15 General considerations 

Definitions for terms such as exclusive representative, employee, 

professional, supervisor and labor organization are found in section 

7103 of the Statute. In addition, section 7112 prohibits the inclusion 

in any bargaining unit of specific categories of employees (e.g., 

confidential, engaged in federal personnel work). 

The Authority alone is empowered to determine bargaining unit 

eligibility. See U.S. Small Business Administration (SBA), 32 FLRA 

847 (1988), reconsideration granted 36 FLRA 155 (1990) (Authority 

reinstated the grievance due to the time delay and a final 

determination on the unit status in a clarification of unit 

proceeding). 

The Authority makes such determinations based on testimony as to 

an employee's actual duties at the time of the hearing, rather than 

on duties that may exist in the future. See Department of Housing 

and Urban Development, Washington, D.C., 35 FLRA 1249, 1256-

1257 (1990). Evidence such as a position description for a position 

may be useful in making unit determinations, but is not controlling. 

The hearing addresses whether the incumbent is performing all 

work listed in the position description, or is performing other work 

not listed in the position description. Some cases involve special 

circumstances which are also addressed at the hearing. 

Arbitrators are not empowered to decide unit eligibility: The 

responsibility for determining appropriate units under the Statute is 

the responsibility of the Authority. This responsibility may include 

the resolution of questions concerning the bargaining unit status of 

individuals. SBA at 853 citing National Archives and Records 

Service, General Services Administration and Local 2578, 

American Federation of Government Employees, AFL-CIO, 9 FLRA 

381 (1982).

Employee recently placed in position: An employee who 

recently filled a position may be the subject of a petition to clarify 
2

the status of the position. Where an employee has recently been 

placed in a position, duties are considered to have been actually 

assigned where: (1) it has been demonstrated that, apart from a 

position description, an employee has been informed that he or she 

will be performing the duties; (2) the nature of the job clearly 

requires those duties, and (3) the employee is not performing those 

duties at the time of the hearing solely because of lack of 

experience on the job. The Authority does not consider duties to 

have been actually assigned where: (1) the assignment of duties is 

speculative, because the nature of the job may change or the 

nature of the job does not require such duties; or (2) although 

duties may be included in a written position description, it is not 

clear that the duties actually will be assigned to the employee or 

that the employee has been informed that he or she will perform 

these duties. See Department of the Interior, Bureau of 

Reclamation, Yuma, Arizona, 37 FLRA 239 at 245 (1990). 

Vacant positions: Generally, eligibility determinations will not be

made for vacant positions. See Department of the Treasury, 

Bureau of the Mint, U.S. Mint, Denver, Colorado, 6 FLRA 52 

(1981). The Authority has carved out two exceptions in which it will 

decide the bargaining unit status of vacant positions. 

1. Where the clarification of a position will decide if an 

individual has access to the negotiated grievance 

procedure, it is appropriate to clarify the position, even if it 

is vacant at the time of the hearing. See HQ, XVIII 

Airborne Corps and Fort Bragg, Fort Bragg, North Carolina 

(Fort Bragg), 34 FLRA 21 (1990). 

2. The Authority extended its holding in Fort Bragg to include 

resolving a unit clarification petition concerning any vacant 

position when that unit determination is a collateral issue 

necessary to the resolution of a grievance at arbitration. 

U.S. Department of Veterans Affairs (VA), 55 FLRA 781 

(1999). Consistent with its holding in Fort Bragg, the 

Authority held that “the Regional Director shall determine 

the unit status of a vacant position when both parties agree 

or an arbitrator decides that the unit determination is 

necessary to the resolution of the grievance at arbitration. 

In such event, the grievance must be placed in abeyance 
Office of the General Counsel 

Representation Case Law Guide October 2000 

pending a decision on a petition for clarification of unit.” 

VA at 784. 

New positions: New employees are automatically included in an 

existing bargaining unit where their positions fall within the express 

terms of a bargaining certification and where their inclusion does 

not render the bargaining unit inappropriate. Often the positions 

are newly created. Department of the Army, Headquarters, Fort 

Dix, Fort Dix, New Jersey (Fort Dix), 53 FLRA 287 (1997). See 

also U.S. Department of the Air Force, Carswell Air Force Base, 

Texas, 40 FLRA 221 (1991) and U.S. Department of Commerce, 

National Oceanic and Atmospheric Administration, National Marine 

Fisheries Service, Northeast Region, 24 FLRA 922 (1986). In 

Division of Military and Naval Affairs, New York National Guard, 

Latham, New York, and Selfridge ANG, Michigan and Alaska 

National Guard (New York NG and Alaska NG), 56 FLRA 139 

(2000), the Authority considered whether three employees who 

were separated from their National Guard technician positions and 

offered Title 5 competitive service provisions pursuant to 5 U.S.C. § 

3329 were included in their respective bargaining units. The 

Authority found that the applicable unit descriptions were 

“sufficiently broad to include section 3329 employees.” New York 

NG and Alaska NG at 142. 

Change in status of employees: If parties agree on inclusions 

and exclusions at an election agreement meeting, and the Regional 

Director approves an election agreement, those inclusions and 

exclusions are binding for the purposes of a later filed petition to 

clarify the unit unless: 

1. If ineligible - stay ineligible unless: 

a) changed circumstances, see Federal Trade 

Commission (FTC I), 15 FLRA 247 (1984) (the 

parties can show that the duties and functions of 

established positions or job classifications covered 

in such agreements have undergone meaningful 

changes after the unit was certified), or 

 b) positions were eligible in the first instance and 

constitute a residual unit. See Federal Trade 

Commission (FTC II), 35 FLRA 576 (1990). 
4

2. If eligible - stay eligible unless: 

a) changed circumstances, or 

b) position was ineligible in the first instance under 

7112(b)(1) thru (7) statutory exclusions. See U.S. 

Department of the Army, U.S. Army Law 

Enforcement Command Pacific, Fort Shafter, 

Hawaii, 53 FLRA 1602 (1998) (the parties 

improperly agreed to include positions that were 

not in conformance with the Statute and were 

subject to statutory exclusions). 

See RCHM 35, Preparation and Checking of Eligibility List, for 

information about updating the eligibility list after the election 

agreement and prior to the election. See HOG 51 for specific 

guidance on developing a record about this topic at hearing.
Office of the General Counsel 

Representation Case Law Guide October 2000 

Additional references:

Department of Labor, Office of the Solicitor, Arlington Field 

Office, 37 FLRA 1371 (1990). 

Veterans Administration Medical Center, Prescott, Arizona,

29 FLRA 1313 (1987) and cases cited therein.

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16 Employee within the meaning of the Statute

 An “employee” is defined in section 7103(a)(2) of the Statute as an 

individual employed by an “agency,” with certain specific 

exceptions. The definition of employee is very broad and has 

been applied to a wide variety of federal positions established in 

accordance with various laws and regulations. Inquiry into the 

status of individuals as “employees” is not limited to questions of 

whether a particular exception in section 7103(a)(2) applies to the 

position(s) at issue. The threshold question in any case involving 

the status of individuals as “employees” is whether the employees 

are employed by an “agency” as defined in section 7103(a)(3). 

The Authority has considered many different government entities 

and types of appointments in deciding whether individuals meet the 

definition of “employees.” Some of these decisions are based on 

reading the Statute in conjunction with other laws and regulations. 

Government Entities:

< Nonappropriated fund (NAF) instrumentalities are established 

under the jurisdiction of the armed forces for the comfort, pleasure 

and physical improvement of military members. Employees paid 

from nonappropriated funds of the Army and Air Force Exchange 

Service, the Navy, Marine Corps and Coast Guard exchanges are 

employees; these NAF activities are specifically included in the 

definition of agency; see section 7103(a)(3) of the Statute. 

< The Kennedy Center for the Performing Arts, as a bureau of the 

Smithsonian Institution, is an agency within the meaning of the 

Statute. Employees of both entities are employees within the 

meaning of section 7103(a)(2). Kennedy Center for the Performing 

Arts, Washington, D.C., 45 FLRA 835 (1992). 

< The U.S. Postal Service is a government owned corporation and, 

therefore, is not an agency within the meaning of section 

7103(a)(3). Postal Service employees are subject to the LMRA; 

they are not employees within the meaning of the Statute. 
2

< Employees of the U.S. Foreign Service are excluded from the 

definition of employee in section 7103(a)(2), but are subject to a 

different law governing labor-management relations. Section 1001 

of the Foreign Service Act, which is administered by the FLRA, 

covers labor-management relations for Foreign Service employees. 

< The Federal Reserve Board, including the Board of Governors, was 

found by the Assistant Secretary of Labor for Labor-Management 

Relations in 1978 not to be an agency within the meaning of the 

Executive Order. Federal Reserve Board, Board of Governors, 

Washington, D.C., Case No. 22-08347(RO), appealed denied 

(1978). 

 Types of Appointments:

< The Authority has found it appropriate in some situations to apply 

the definition of employee contained in 5 U.S.C. 2105(a) in addition 

to the definition of employee found at section 7103(a)(2) of the 

Statute. U.S. Department of Labor and Operations Maintenance

Service, Inc. (Keystone Job Corps Center), 32 FLRA 622 (1988). 

< Excepted service employees appointed pursuant to 5 U.S.C. 2103, 

are considered “employees.” 

< Off-duty military personnel employed by an agency are 

“employees” and may not be excluded from appropriate units 

based solely on their military status. See Navy Exchange, 

Mayport, Florida, 1 A/SLMR 142 (1970). 

< Teachers employed by the Department of Defense Dependents 

Schools system are employees and are not independent 

contractors. See Fort Knox Dependents Schools, 5 FLRA 33 

(1981). If employed overseas, teachers are subject to unique terms 

and conditions of employment established by the Overseas 

Teachers Pay and Personnel Practices Act, 20 U.S.C. 901, et seq. 

< Health care professionals employed under Title 38 have unique 

appointments and terms and conditions of employment. 

Nevertheless, they are employees within the meaning of the 

Statute. 
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< Registered aliens working within the United States are employees 

under section 7103(a)(2). See U.S. Department of the Treasury, 

Internal Revenue Service, Detroit District, Detroit, Michigan, 38 

FLRA 52 (1990). 

< A proposed unit of VISTA volunteers was not appropriate for 

exclusive recognition. Although they worked for a federal agency, 

VISTA volunteers were specifically denied status as federal 

employees in the Economic Opportunity Act of 1964. Thus, VISTA 

volunteers are not “employees”. See VISTA, 1 A/SLMR 445 

(1974). 

< Recruits who have been offered positions pending successful 

completion of final certification procedures or pre-employment 

examinations, are not employees within the meaning of the Statute. 

See Department of Defense Office of Dependent Schools, 36 

FLRA 871 (1990). 

< Employees assigned to special purpose Intergovernmental 

Personnel Act (IPA) assignments “remain employed in an agency” 

within the meaning of section 7103(a)(2)(A) of the Statute. In this 

case, individuals detailed to work at an Indian health care facility 

remain section 7103(a)(2) employees, because 5 U.S.C. § 3373 

dictates that they remain employees of the agency. Phoenix Area 

Indian Health Service, Sacaton Service Unit, Hu Hu Kam Memorial 

Hospital, Sacaton, Arizona, 53 FLRA 1200 (1998), motion for 

reconsideration denied, 54 FLRA 243 (1998) and Phoenix Area 

Indian Health Service, Owyhee Service Unit (Owyhee PHS Indian 

Hospital, and Elko Clinic) Owyhee, Nevada, 53 FLRA 1221(1998). 

< Employees participating in a Compensated Work Therapy (CWT) 

program at the Department of Veterans Affairs, are not employees 

under section 7103(a)(2) of the Statute. Section 1718(a) of Title 38 

states that participants in rehabilitative work programs under that 

section are not “considered employees of the United States for any 

purpose.” 38 U.S.C. § 1718(a). Section 1718 operates as a 

statutory exclusion from the Statute. U.S. Department of Veterans 

Affairs, Hunter Holmes McGuire Medical Center, 54 FLRA 

471(1998). 
4

 See HOG 52 for specific guidance about this topic at hearing. 
Office of the General Counsel 

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Representation Case Law Guide October 2000 

1

17 Internal audit / investigation function 

 Section 7112(b)(7) excludes from all bargaining units: 

 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. 

Employees engaged in investigation or audit functions are 

excluded from bargaining units under section 7112(b)(7) on the 

basis that inclusion of individuals performing these functions would 

create a conflict with bargaining unit status. The nature of the 

investigation/audit and what the investigation/audit might uncover 

as it pertains to unit employees is controlling as to this exclusion. 

For example, individuals who audit agency programs and/or 

contracts and whose audits may uncover the failure of employees 

to comply with programs, or employee fraud waste and abuse, are 

excluded pursuant to section 7112(b)(7). See Small Business 

Administration, 34 FLRA 392, 400 - 402 (1990). Thus, auditors or 

investigators do not have to be directly investigating unit 

employees for this exclusion to be considered. 

The section 7112(b)(7) standard includes any audit or investigation

that relates to the “honesty and integrity” of particular types of 

employees. It is not limited to employees who perform 

investigations relating to “fraud, waste, and abuse.” U.S. 

Department of Justice, Federal Bureau of Prisons, U.S. 

Penitentiary, Marion, Illinois (DOJ), 55 FLRA 1243 (2000) [the 

Authority instructed the Regional Director to “consider whether the 

Legal Assistant’s (the disputed employee) investigations of 

allegations that employees have used excessive force or have 

violated the civil rights of inmates constitute investigation of 

whether such employees have performed their duties honestly and 

with integrity.”]. Also, the fact that the audits or investigations do 

not regularly find these violations is not dispositive. 
2

See HOG 53 for specific guidance about this topic at hearing.
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3

Other references:

 Department of Labor, Office of the Inspector General, 

Region I, Boston, 7 FLRA 834 (1982). 

 U.S. Department of the Navy, Navy Audit Service, 

Southeast Region, 46 FLRA 512 (1992). 

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18 Administering a labor relations statute 

Three sections of the Statute discuss exclusions based on duties 

related to “administering a labor relations statute.” 

Section 7103(a)(3) excludes from the definition of “agency” the 

Federal Labor Relations Authority and the Federal Service 

Impasses Panel. 

Section 7112(b)(4) excludes from any bargaining unit “an 

employee engaged in administering any provisions of the Statute.” 

This provision includes federal mediators of the Federal Mediation 

and Conciliation Service who were found to administer the 

provisions of Section 7119(a) of the Statute and, therefore, are not 

eligible for representation. Federal Mediation and Conciliation 

Service, Region 7, San Francisco, California, 3 FLRA 138 (1980); 

and Federal Mediation and Conciliation Service, 52 FLRA 1509 

(1997). 

In United States Department of Labor, Office of the Solicitor, 

Region III (DOL Solicitor), 8 FLRA 286 (1982), the Authority 

concluded that employees who enforce section 7120(a) through (e) 

of the Statute are engaged in administering its provisions pursuant 

to section 7112(b)(4). 

Other federal employees are employed by federal agencies which 

administer statutes that pertain to labor-management relations. As 

to their situation, section 7112(c) provides as follows: 

 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 provisions 

applies; or 

 2) which is affiliated directly or 

indirectly with an organization which 

represents other individuals to whom such 

provisions applies. 
2

Section 7112(c) pertains solely to those employees who are 

involved in administering a law intended to affect or regulate, in 

some way, the collective bargaining process or other matters 

directly affecting the labor-management relationship. U.S. 

Department of Labor, Pension and Welfare Benefits Administration,

38 FLRA 65 (1990). Section 7112(c) of the Statute does not 

prohibit these employees from being represented by a union in a 

bargaining unit. Rather, section 7112(c) places restrictions on the 

types of unions that can represent such employees. These 

restrictions were enacted "to prevent conflicts of interest and 

appearance of conflicts of interest which would result from 

represented employees administering labor laws that apply to other 

employees from their union." See United States Department of 

Labor, Pension and Welfare Benefits Administration, 30 FLRA 

1229, 1234 (1988), citing the Legislative History of the Federal 

Service Labor-Management Relations Statute, Title VII of the Civil 

Service Reform Act of 1978, Committee Print No. 96-7 at 925. 

For example, unlike the Department of Labor (DOL) employees 

who administer Section 7120 (a) through (e) of the Statute and are 

therefore excluded from coverage based on 7112(b)(4), the 

Authority reversed an earlier decision and found that DOL 

employees who administer the Employee Retirement Income 

Security Act (ERISA) are not precluded from being in a unit 

represented by AFGE. The Authority stated that ERISA is not a 

law relating to “labor-management relations” within the meaning of 

section 7112(c) of the Statute. Rather, the primary functions of 

ERISA are to regulate and investigate the funding and 

administration of employee benefit plans. Involvement with a labor 

organization is in the context of alleged violations of ERISA, not 

alleged violations of laws relating to collective bargaining or other 

matters particular to the labor-management relationship. U.S. 

Department of Labor, Pension and Welfare Benefits Administration, 

38 FLRA 65 (1990) reversing in part U.S. Department of Labor, 23 

FLRA 464 (1986). 

Interpreting the phrase “affiliated directly or indirectly” in 

section 7112(c): In National Mediation Board, 54 FLRA 1474 

(1998), the Authority considered the meaning of “affiliated directly 

or indirectly” in the Statute for the first time. The NMB administers 
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the Railway Labor Act. The Authority construed the phrase to 

include the relationship between unions that are linked to each 

other through their separate affiliation with the AFL-CIO. The 

Authority concluded that the relationship between the petitioner and 

other union affiliates of the AFL-CIO that represent employees 

covered by the Railway Labor Act falls within the phrase “indirect 

affiliation” under section 7112(c). 

Applying the definition “administer” to sections 7112(b)(4) and 

7112(c): The Authority further elaborated on the word “administer” 

as construed by the Authority under section 7112(b)(4), stating that 

since section 7112(b)(4) and 7112(c) “were enacted for the same 

purpose -- to protect against a conflict of interest between 

administering employees and the employees covered by the labor 

relations statute being administered – there appears to be no 

practical difference in the manner in which the word ‘administer’ as 

used in each of these provisions, is construed.” National Mediation 

Board (NMB II), 56 FLRA 1 (2000). Thus, the Authority stated that

“administer” means to have charge of, manage, and applies to 

both section 7112(b)(4) and 7112(c). Any other employees in the 

agency “who are not responsible for managing, implementing, 

carrying-out, or otherwise executing a provision of law relating to 

labor-management relations to be included in an appropriate unit.” 

NMB II at 5. (footnotes omitted). 

 Employees administering laws affecting labor unions as 

employers: Labor unions that are employers are subject to laws 

and regulations relating to discrimination in employment and wage 

and hour standards, to name a few. Section 7112(c) does not 

apply to federal employees who administer these types of laws, 

because these laws do not pertain to the collective bargaining 

process. Any union can represent these federal employees, as long 

as the unit meets the appropriateness of unit criteria, as defined in 

section 7112(a)(1) of the Statute and as addressed in RCL 1.

See HOG 54 for specific guidance about this topic at hearing.
4
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19 Confidential employee 

 “Confidential employee” is defined in Section 7103(a)(13) of the 

Statute as: 

 ... an employee who acts in a 

confidential capacity with respect to an 

individual who formulates or effectuates 

management policies in the field of labormanagement relations. 

A unit is not appropriate if it includes confidential employees 

[section 7112(b)(2)]. 

An employee is a "confidential" if (1) there is evidence of a 

confidential working relationship between an employee and a 

supervisor or manager and (2) the supervisor or manager is 

significantly involved in labor-management relations. This two-part, 

labor-nexus test is used to examine the nature of an employee's 

confidential working relationship. See U.S. Department of Labor, 

Office of the Solicitor, Arlington Field Office, 37 FLRA 1371 (1990). 

Both factors must be present for an employee to be considered 

"confidential" within the meaning of section 7103(a)(13). See U.S. 

Army Plant Representative Office, Mesa, Arizona, 35 FLRA 181 

(1990). Thus, a determination of confidential status is dependent 

upon the work performed by the individual with whom the employee 

works. This individual may be the employee's supervisor or may 

be another manager. 

An individual who actually formulates or effectuates management 

policies in the field of labor-management relations is considered a 

confidential employee. U.S. Department of Housing and Urban 

Development, Washington, D.C., 35 FLRA 1249, 1255-57 (1990). 

Other responsibilities identified by the Authority in this regard 

include: 

a. advising management on or developing negotiating

positions and proposals, 

b. preparing arbitration cases for hearing, and 
2

c. consulting with management regarding the handling of 

unfair labor practice cases. 

U.S. Department of Justice, Federal Bureau of Prisons, U.S. 

Penitentiary, Marion, Illinois (DOJ), 55 FLRA 1243 at 1247 (2000). 

d. engaging in partnership activities that includes the 

formulation and effectuation of labor relations policies. See

U.S. Department of Transportation, Federal Aviation

Administration, Standiford Air Traffic Control Tower, 

Louisville, Kentucky, 53 FLRA 312, 319 (1997) (collective 

bargaining may occur in a variety of ways, including the 

use of collaborative or partnership methods). DOJ, 55 

FLRA 1246 at n.5 

 

Other individuals who are privy to labor-management relations 

policies as they are developed are excluded on the basis of 

confidential status, because their inclusion in a bargaining unit 

would create a conflict of interest between the employee's work 

duties and unit membership. 

 

Therefore, at a hearing it is necessary to explore not only the work 

of the employee whose status as a confidential is in dispute, but 

also the work of the person with whom or for whom the disputed 

employee works. It is also important to focus on the stage at which 

this confidential employee is involved in the process by which 

management labor-relations policies are developed (i.e., is the 

employee present during the development of the policies, or does 

the employee's involvement occur after the management policy has 

been developed and decided). An employee's mere access to 

labor relations material does not justify unit exclusion. 

 

See HOG 55 for specific guidance about this topic at hearing.

Other references:

Department of Veterans Affairs, Regional Office, Waco, Texas, 50 

FLRA 109, 111-12 (1995). 

Department of Interior, Bureau of Reclamation, Yuma, 

Arizona, 37 FLRA 239 (1990). 
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U.S. Department of Labor, 33 FLRA 265 (1988). (Authority 

rejected union’s argument that a limited amount of actual 

confidential labor relations work does not provide a substantial 

basis for excluding employees from a bargaining unit.) 

Tick Eradication Program, Veterinary Services, Animal and 

Plant Inspection Service, United States Department of 

Agriculture, 15 FLRA 250 (1984). 
4

Red River Army Depot, Texarkana, Texas, 2 FLRA 659, 660 

(1980). 

Associated Day Care, 269 NLRB 178, at 181(1984) ( “It is well 

established that mere access to confidential labor relations material 

such as personnel files, minutes of management meetings, and 

grievance responses is not sufficient to confer confidential status; 

even the typing of such material does not, without more, warrant a 

finding of confidential status. Thus, unless it can be shown that the 

employee has played some role in creating the document or in 

making the substantive decision being recorded, or that the 

employee regularly has access to labor relations policy information 

before it becomes known to the union or employees concerned, the 

Board will not find the employee to have confidential status. Based 

on the record evidence, we find that the Employer's administrative 

assistants are expected to play a role in the investigation of 

grievances which will affect the decision made by management on 

the merits of a grievance and that this is sufficient to render them 

confidential employees. Furthermore, we find that they are 

expected to have regular access to, and on occasion to type, 

memoranda concerning management proposals for collective 

bargaining before these proposals are presented to the Union; we 

also note that they will regularly see the minutes of the weekly 

management meetings at which management proposals for 

collective bargaining will be discussed. While the administrative 

assistants may spend relatively little of their working time 

performing these duties, the amount of time devoted to labor 

relations matters is not the controlling factor in determining 

confidential status.”) 

NLRB v. Hendricks County Rural Electric Membership Corp., 454 

U.S. 170, at 189 (1981) (The Supreme Court upheld "labor nexus" 

test for excluding confidential employees, i.e., that the Board will 

exclude confidential secretaries from bargaining units only if those 

employees "assist and act in a confidential capacity to persons who 

formulate, determine, and effectuate management policies in the 

field of labor relations.") 
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20 Employees engaged in personnel work 

 Section 7112(b)(3) of the Statute excludes from an appropriate 

units "an employee engaged in personnel work in other than a 

purely clerical capacity." Employees are considered 

“personnelists” under section 7112(b)(3) if their inclusion in the unit 

would result in a conflict of interest between work duties and union 

membership. 

 Nature of personnel work: A position is excluded under section 

7112(b)(3) of the Statute when: (1) the character and extent of 

involvement of the incumbent in personnel work is more than 

clerical in nature; and (2) the duties of the position in question are 

performed in a non-routine manner or are of such a nature as to 

create a conflict of interest between the incumbent's union 

affiliation and job duties. See Department of the Treasury, Internal 

Revenue Service, Washington, D.C. and Internal Revenue Service, 

Cincinnati District, Cincinnati, Ohio, 36 FLRA 138, 144 (1990). 

Exercise of independent judgment and discretion: Employees 

who exercise independent judgment and discretion in initiating 

personnel actions or making recommendations to management on 

personnel actions are engaged in federal personnel work in other 

than a purely clerical capacity. See U.S. Department of Housing 

and Urban Development, 34 FLRA 207, 214 (1990). In contrast, 

individuals whose duties only require the recording and processing 

of completed personnel actions, maintenance of personnel files, or 

the screening of personnel actions for technical sufficiency, are not 

subject to the exclusion in section 7112(b)(3) because their 

involvement in personnel work is in a clerical capacity. See U.S. 

Naval Station, Panama, 7 FLRA 489 (1981). 

 Personnel work must pertain to employees: Employees who 

are involved in recruiting efforts for the military or who process 

military personnel information are not engaged in "federal 

personnel work" within the meaning of section 7112(b)(3) of the 

Statute. See U.S. Army District Recruiting Command - 

Philadelphia, 12 FLRA 409 (1983); 934th Tactical Airlift Group, 

Minneapolis-St. Paul International Airport, Minneapolis, Minnesota, 

13 FLRA 549, 561, 562 (1983). 
2

See HOG 56 for specific guidance about this topic at hearing.

Other references:

 Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 5 

FLRA 339 (1981). 

 Veterans Administration Medical Center, Prescott, Arizona, 29 

FLRA 1313 (1987). 

 U.S. Department of the Army, Headquarters, 101st Airborne 

Division, Fort Campbell, Kentucky, 36 FLRA 598 (1990). (A conflict 

of interest between job duties and union affiliation may be created 

when an employee's duties would require the employee to act in a 

manner adverse to bargaining unit interests, such as 

recommending appropriate organizational structure and staffing 

levels, and is one of the factors which the Authority may look to in 

determining whether a position is involved in personnel work in 

other than a purely clerical capacity.) 

U.S. Department of Justice, Federal Bureau of Prisons, U.S. 

Penitentiary, Marion, Illinois (DOJ), 55 FLRA 1243 (2000)
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21 General attorneys 

 Congress intended that attorneys, like other professional 

employees, have the same right to be represented in bargaining 

units that Congress conveyed to other federal employees. 

Membership in a labor organization is in itself not incompatible with 

the obligations of fidelity owed to an employer by its employees. 

See Dun & Bradstreet-II, 240 NLRB 162, at 163 (1979) The 

American Bar Association's (ABA) Model Canons of Professional 

Responsibility is not controlling when making bargaining unit 

determinations under the Statute. 

Nonetheless, the right of an employee to be represented in the 

collective bargaining process must be balanced with the right of the 

employer to formulate and effectuate its labor policies with the 

assistance of employees not represented by the union with which it 

deals. See U.S. Department of Labor, Office of the Solicitor, 

Arlington Field Office, 37 FLRA 1371, 1381 (1990). 

Some attorneys perform duties which otherwise cause them to be 

excluded from bargaining units. For example, an attorney may 

function in a confidential capacity to an individual who formulates 

labor-management relations policies. Similarly, an attorney may be 

privy to labor-management relations policies as they are 

developed. These employees are confidential employees within 

the meaning of section 7103(a)(13) of the Statute. Other attorneys 

may be engaged in federal personnel work in other than a clerical 

capacity and, thus, excluded from bargaining units, pursuant to 

section 7112(b)(3). Still others may be engaged in security work 

within the definition of section 7112(b)(6) of the Statute. See 

United States Attorney’s Office for the District of Columbia, 37 

FLRA 1077 (1990). 

When considering the bargaining unit status of an attorney, a 

complete examination is made of all the relevant duties and 

responsibilities of the individual in the position to determine 

whether the position is eligible for inclusion in the unit or whether it 

is ineligible based upon a statutory requirement. For items related 

to specific confidential or federal personnelist exclusions, consult 

those employee categories in RCL 19 and RCL 20 of this manual. 
2

For security work, see RCL 25. Where an attorney is being 

assigned duties or functions as a representative of management, 

the question may arise as to whether inclusion of this attorney 

would create a conflict of interest. RCL 22.

See HOG 57 for specific guidance on developing a record 

about this topic at hearing.

Other references:

U.S. Department of Labor, 33 FLRA 265 (1988). 

NLRB v. Lorimar Productions, Inc., 771 F.2d 1294 (9th Cir. 

1985). 

Hoover Co., 55 NLRB 1321 (1944).
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22 Management official 

 "Management official" is defined in section 7103(a)(11) of the 

Statute as: 

. . . 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 

policy of the agency. 

A unit is not appropriate if it includes management officials [section 

7112(b)(1)]. 

The criteria to be applied in determining if a position meets the 

statutory definition of "management official" is whether the person 

in the position: 

a) creates, establishes or prescribes general principles, plans 

or courses of action for an agency; 

b) decides upon or settles upon general principles, plans or 

courses of action for an agency; or 

c) brings about or obtains a result as to the adoption of 

general principles, plans or course of action for an agency. 

See Department of the Navy, Automatic Data Processing Selection 

Office, 7 FLRA 172, 177 (1981). 

Independent judgment exercised by the individual formulating or 

effectuating agency policies is critical in determining if a person is a 

management official. Individuals who serve on a board which sets 

agency policies may be management officials within the meaning of 

the Statute. U.S. Department of Justice, Board of Immigration 

Appeals, 47 FLRA 505 (1993). 

In those cases where an individual recommends policies or 

courses of action for an agency, the frequency of which the 

recommendations are adopted is important in determining if that 
2

person is a management official. To be a management official 

within the meaning of the Statute, the person in the position 

formulates policy or participates in the formulation of policy. A 

person who is responsible for effectuating the policy or who assists 

in the implementation of policy is not a management official. 

See HOG 58 for specific guidance about this topic at hearing.

Other references:

U.S. Army Communications System Agency, Fort Monmouth, New 

Jersey, 4 FLRA 627 (1980). 

Department of Defense, Defense Logistics Agency, Defense 

Contract Management Command, Defense Contract Management 

District North Central, 48 FLRA 285 (1993) 
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23 Professional employee 

 Section 7103(a)(15) of the Statute defines a professional employee 

as: 

 (A) an employee engaged in the 

performance of work-- 

 (i) requiring knowledge of an 

advance type in a field of science or 

learning customarily acquired by a 

prolonged course of specialized intellectual 

instruction and study in an institution of 

higher learning or a hospital (as 

distinguished from knowledge acquired by 

a general academic education, or from an 

apprenticeship, or from training in the 

performance of routine mental, manual, 

mechanical, or physical activities; 

 (ii) requiring the consistent 

exercise of discretion and judgment in its 

performance; 

 (iii) which is predominately 

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 course 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. 
2

The Authority noted in United States Attorneys Office for the 

District of Columbia, 37 FLRA 1077, 1081 to 1083 (1990) that 

consistent with the definition in section 7103(a)(15), a college 

degree is not always required for an employee to be a 

“professional” under the Statute. Therefore, it is imperative that the 

region’s decision cite or discuss specific evidence on which the 

decision is relied and reference the complete statutory standards. 

In other words, identify the evidence as it relates to each statutory 

standard. See U.S. Department of the Army, Wilmington District, 

Corps of Engineers, Wilmington, North Carolina, unnumbered 

Order Denying Application for Review in Case No. AT-RP-80059, 

(1999) at 3 (unnumbered footnote). 

The effect of finding employees are professionals is significant. 

Professionals have the right of unit self-determination under section 

7112(b)(5). That is, professionals vote not only on whether they 

wish to be represented by a union in a bargaining unit, but also on 

whether the bargaining unit will consist solely of professional 

employees or be a combined professional/nonprofessional unit. In 

making determinations as to professional status, it is particularly 

important to focus on the educational requirements of the position, 

not merely on the credentials or certifications the individual 

employee may possess. For procedures to follow in elections 

involving professional employees, see CHM 28.

See HOG 59 for specific guidance about this topic at hearing.

Other references:

Veterans Administration Regional Office, Portland, Oregon, 9 FLRA 

804 (1982). 

 

 
Office of the General Counsel 

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24 Schedule C positions 

 “Schedule C” positions are described in 5 C.F.R. 213.3301: 

 Section 213.3301 Positions of a confidential or 

policy-determining character. 

Upon specific authorizations by OPM, or 

under the terms of an agreement with 

OPM, agencies may make appointments 

under this section to positions which are 

policy-determining or which involve a close 

and confidential working relationship with 

the head of an agency or other key 

appointed officials. Positions filled under 

this authority are excepted from the 

competitive service and constitute 

Schedule C. 

< The OPM guidance that Schedule C employees have a

“confidential working relationship with the head of an 

agency...” does not compel a conclusion that Schedule C 

employees are expressly excluded from the Statute. 

< Neither the definition of “employee” in section 7103(a)(2) of 

the Statute nor the specific unit exclusions set forth in 

section 7112(b) of the Statute references Schedule C 

employees. 

< Pursuant to section 7105(a)(2)(A) of the Statute, questions 

concerning the bargaining unit status of employees are 

exclusively reserved for final resolution with the Authority. 

See U.S. Department of Labor, Mine Safety and Health 

Administration, Southeastern District, 40 FLRA 937, 941 

(1991). 

< The eligibility factors considered when determining if any 

employee is to be included in a bargaining unit are applied 

to determining unit eligibility of Schedule C employees. 
2

For questions related to specific Statutory exclusions, consult 

the Table of Contents for the employee category(ies) at issue 

and HOG 60 for specific guidance. 

 

Other references:

U.S. Department of Housing and Urban Development, 

Headquarters, 41 FLRA 1226 (1991). 
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25 Security work

Generally, employees engaged in intelligence, counterintelligence 

or national security work are excluded from bargaining units. Three 

sections of the Statute address these exclusions: 

 Section 7103(a)(3) specifically excludes from the definition of 

"agency" the following agencies engaged in national security work: 

(1) the Federal Bureau of Investigation; (2) the Central Intelligence 

Agency and (3) the National Security Agency. Thus, employees of 

these agencies cannot be in any bargaining units. 

 Section 7103(b)(1) allows the President to exclude employees of 

certain agencies or subdivisions from coverage of the Statute. This 

section provides: 

 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. 

In the past, Presidents have excluded entire agencies or 

subdivisions thereof from coverage of the Statute. In accordance 

with section 7103(b)(1), Executive Order 12171 was issued, 

excluding from coverage of the Statute employees working in 

certain agencies or subdivisions of agencies. It was later amended 

by Executive Orders 12338 and 12632. The validity of the 

Executive Order has been upheld in AFGE v. Reagan, 870 F.2d 

723 (D.C. Cir., 1982). The Executive Order, as amended, identifies 

numerous activities that are engaged in national security work and 

as such are excluded from coverage under Chapter 71 of Title 5 of 
2

the United States Code). See Department of the Navy, Naval 

Telecommunications Center, Ward Circle, 6 FLRA 498 (1981). 
Office of the General Counsel 

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 Section 7112(b)(6) excludes employees in certain categories from 

all bargaining units. This section applies to specific positions, 

rather than to an agency or subdivision. Section 7112(b)(6) 

excludes from any bargaining unit: 

any employee engaged in intelligence, 

counterintelligence, investigative, or 

security work which directly affects 

national security. 

Under section 7112(b)(6) the Activity must show (1) that the 

individual employee is engaged in the designated work, and (2) 

that the work directly affects national security. Neither security 

work, directly affects nor national security are defined in the 

Statute. The Authority defines: 

a. security work as a task, duty, function or activity relating to 

securing, guarding, shielding, protecting or preserving 

something. As used in context, security work includes “the 

design, analysis or monitoring of security systems or 

procedures.” Department of Energy, Oak Ridge 

Operations, Oak Ridge, Tennessee (Oak Ridge), 4 FLRA 

644 at 655 (1980). It would not include work involving the 

mere access to and use of sensitive information and

material. id. at 655 citing Cole v. Young, 76 S. Ct. 861, 351 

U.S. 536 (1956). 

b. directly affects is “a straight bearing or unbroken 

connection that produces a material influence or 

alternation.” Oak Ridge, 4 FLRA at 655 (citation omitted). 

. 

b. national security includes “only those sensitive activities of 

the government that are directly related to the protection 

and preservation of the military, economic, and productive 

strength of the United States, including the security of the 

government in domestic and foreign affairs, against or from 

espionage, sabotage, subversion, foreign aggression and 

any other illegal acts with adversely affect the national 

defense.” Id. at 655-656. 
4

In U.S. Department of Justice (Justice II), 52 FLRA 1093 

(1997), the Authority found that the work of employees of 

civilian, as well as military, agencies constitute security 

work which directly affects national security within the 

meaning of section 7112(b)(6) of the Statute. In addition, 

the Authority established a standard for considering 

whether employees of a civilian agency are engaged in 

“security work” which directly affects national security, 

within the meaning of section 7116(b)(6). The Authority 

found that: 

an employee is engaged in “security work” 

within the meaning of section 7112(b)(6) if 

the required tasks, duties, functions, or 

activities of the employee’s position 

include: (1) the designing, analyzing, or 

monitoring of security systems or 

procedures; or (2) the regular use of, or 

access to, classified information. If an 

employee is engaged in security work, as 

so defined, which directly affects national 

security, as discussed above, the 

employee may not be included in a 

bargaining unit. Oak Ridge, 4 FLRA at 

655. (In a footnote the Authority reaffirmed 

the definition of directly affects in Oak 

Ridge.) Justice II, 52 FLRA at 1103. 

See HOG 61 for specific guidance about this topic at hearing.

Other references:

Office of Personnel Management, 5 FLRA 238, 247-248 

(1981). 

U.S. Department of the Navy, U.S. Naval Station, Panama, 7 FLRA 

489 (1981). 

Defense Mapping Agency, Aerospace Center, Kansas City Office, 

Kansas City, Missouri, 13 FLRA 52 (1983). 

U.S. Department of the Army, Army Ordnance Missile and 
Office of the General Counsel 

Representation Case Law Guide October 2000 

5

Munitions Center and School, Redstone Arsenal, Alabama, 

35 FLRA 987 (1990). 

U.S. Attorneys Office, Washington, D.C., 37 FLRA 1077, 

1084 (1990), citing Defense Mapping Agency, 

Hydrographic/Topographic Center, Providence Office,

Brookside Avenue, West Warwick, Rhode Island, 

Department of Defense, 13 FLRA 128 (1983).
6
Office of the General Counsel 

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26 Supervisors 

 Section 7103(a)(10) of the Statute defines "supervisor" as: 

 

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. 

Except as provided under section 7135(a)(2), a unit is not 

appropriate if it includes supervisors [see 7112(b)(1) and RCL 14

for a discussion of units including supervisors]. 

 

 Consistent exercise of judgment: An individual is a supervisor if 

s/he consistently exercises independent judgment with regard to 

the supervisory indicia set forth in §7103(a)(10) of the Statute. See 

Army and Air Force Exchange Service, Base Exchange, Fort 

Carson, Fort Carson, Colorado, 3 FLRA 596, 599 (1980). 

 Supervision of “employees”: To be a supervisor within the 

meaning of the Statute, the person supervises an employee, as 

defined by the Statute. Thus, individuals who supervise military 

personnel are not supervisors within the meaning of the Statute, 

since they do not supervise employees. Adjutant General of 

Michigan, Air National Guard, Battle Creek, Michigan, 11 FLRA 66, 

67 (1983). 

 Number of employees: There is no requirement that an individual 

supervise a certain number of employees to be a supervisor under 

section 7103(a)(10). An individual who supervises one employee 

is a supervisor within the meaning of the Statute. See
2

Headquarters III Corps and Fort Hood, Fort Hood, Texas, 13 FLRA 

479 (1983). 

 Number of supervisory indicia: Not all supervisory functions 

must be exercised, for an individual to be deemed a supervisor. An 

individual who consistently exercises only one of the supervisor 

indicia is a supervisor within the meaning of the Statute. See 

Department of the Air Force, Hanscom Air Force Base, Bedford, 

Massachusetts, 14 FLRA 266, 268 (1984). U.S. Department of 

Veterans Affairs, Veterans Administration Medical Center, Allen 

Park, Michigan (VA Allen Park), 35 FLRA 1206 (1990). 

Joint performance of supervisory function: Joint performance 

of a supervisory function is sufficient to qualify an individual as a 

supervisor, if independent judgment is exercised by the individual. 

See VA Allen Park, 35 FLRA 1206 (1990). 

 Evaluation of employees: Responsibility for independently 

evaluating employee performance is a basis for finding that an 

individual is a supervisor, where the evidence demonstrates that 

the evaluations are used when upper management makes 

decisions to hire, promote, reward or discipline employees. See 

Department of the Interior, Bureau of Indian Affairs, Navajo Area 

Office, 45 FLRA 646 (1992). 

 Use of secondary indicia. In cases where the evidence does not 

conclusively establish that an individual exercises supervisory 

authority within the meaning of the Statute, certain "secondary 

indicia" of supervisory status will be considered. These secondary 

factors include: (1) attending meetings, including supervisory 

training sessions and (2) having the authority to grant time off to 

employees. Department of the Interior, Bureau of Indian Affairs, 

Navajo Area Office, 45 FLRA 646 at 654 (1992). The ability to 

approve or deny leave, without a showing of the exercise of any 

specific statutory supervisory authority, is not enough to 

demonstrate supervisory status. Veterans Administration Medical 

Center, Allen Park, Michigan, 34 FLRA 423, 426 (1990). 

 Seasonal supervisors. Individuals who exercise supervisory 

authority for a portion of the year and perform unit work for the 

remainder are "seasonal supervisors". They are excluded from the 
Office of the General Counsel 

Representation Case Law Guide October 2000 

3

unit as supervisors during the period in which they are supervising 

employees, and included in the unit the remainder of the year. 

U.S. Department of Agriculture, Forest Service, Intermountain 

Region,Challis National Forest, 23 FLRA 349 (1981). 

 Firefighters and nurses. For application of the supervisory indicia 

to firefighters and nurses, see section 63 of this manual. 

 Team leaders. Determination of the supervisory status of team 

leaders rests upon the degree of independent judgment exercised 

by the team leaders. Team leaders are not supervisors if their 

responsibilities are routine in nature; if their function is to give 

technical advice to others, or if their work duties do not involve the 

consistent exercise of independent judgment. See U.S. 

Department of the Treasury, Office of Chief Counsel, 32 FLRA 

1255, 1258-60 (1988). Team leaders who consistently exercise 

independent judgment in assigning work and directing and 

reviewing other employees’ work are considered supervisors. U.S. 

Department of the Army, Army Aviation Systems Command and 

Troop Support Command, St. Louis, Missouri, 36 FLRA 587 

(1990). 

See HOG 62 for specific guidance about this topic at hearing.

Other references:

 Department of Energy, Oak Ridge Operations, Oak Ridge, 

Tennessee, 4 FLRA 644, 651-52 (1980).
4
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27 Firefighters and nurses 

 Section 7103(a)(10) of the Statute contains a special definition of 

"supervisor" as it pertains to firefighters and nurses, stating that 

with respect to any unit including firefighters or nurses, the term 

"supervisor" includes only those individuals "who devote a 

preponderance of their employment time exercising 

supervisory authority." 

The Statute contains no definition of "nurse" and no specific 

meaning of the term “nurse” has been developed through Authority 

cases. Section 7103(a)(17) of the Statute defines "firefighter" as: 

 ...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. 

There are two important aspects to the statutory definition of a 

supervisory firefighter or nurse. The supervisory firefighter or nurse 

must spend a preponderance of employment time engaged in 

supervisory functions. The term "preponderance" has not been 

defined by the Authority in any of its decisions. Thus, it is important 

to develop as complete a record as possible of the duties and 

assignments of the individuals in question. In addition, the Statute 

uses the term "employment time", rather than work time. Thus, for 

those firefighters who are assigned to 24-hour shifts, the amount of 

time engaged in supervisory duties throughout the entire 24-hour 

period is developed. See U. S. Department of the Navy, Marine 

Corps Base, Camp Pendleton, California, 8 FLRA 276 (1982). The 

"preponderance of employment time" test applies only to 

firefighters and nurses in bargaining units, and not to other types of 

employees who happen to be in units containing firefighters or 

nurses. See Department of the Navy, Naval Undersea Warfare,

Engineering Station, Keyport, Washington, 7 FLRA 526, 529 

(1981). 

See HOG 62 for specific guidance on supervisory indicia to 

use at hearing and HOG 63 for guidance about firefighters and 
2

nurses at hearing.

 

Other references:

 Department of the Navy, Naval Education and Training 

Center, Newport, Rhode Island, 3 FLRA 325, 327 (1980). 

 U S. National Park Service, Santa Monica Mountains

Recreation Area, Agoura Hill, California, 50 FLRA 164, 170 

(1995). 

 Veterans Administration, Washington, D.C. and Veterans 

Administration Medical Center, Salisbury, North Carolina, 

11 FLRA 176 (1983). 

 Veterans Administration Medical Center, Lyons, New

Jersey, 14 FLRA 46 (1984).
Office of the General Counsel 

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28 Temporary employees

Agencies may hire employees to “temporary” or “term” 

appointments of fixed durations, as defined in 5 C.F.R. 316. 

Temporary or term employees may be included in a unit with other 

employees, as long as their inclusion would otherwise be 

appropriate. In addition, a separate unit of temporary employees is 

appropriate, as long as the unit meets the criteria of section 

7112(a)(1) of the Statute. 

Temporary employees share a community of interest with 

permanent employees where the evidence shows that they 

“manifest a substantial and continuing interest in the terms and 

conditions of employment along with permanent employees.” See 

U.S. Department of Agriculture, Region Forester Office, Forest 

Services, Region 3, Santa Fe National Forest, Santa Fe, New 

Mexico, 1 A/SLMR 417 (1971); U.S. Department of Agriculture, 

Forest Service, Francis Marion and Sumter National Forests, 2 

A/SLMR 596 (1972). 

Therefore, an important consideration in determining whether 

temporary employees share a community of interest with 

permanent employees is whether the temporary employees have a 

reasonable expectation of continued employment. See U.S. 

Army Engineer Activity, Capital Area, Fort Myer, Virginia, 34 FLRA 

38, 42 (1989). In addition to the standard community of interest 

criteria, there are a variety of other factors considered in 

determining whether temporary employees have a reasonable 

expectation of continued employment. 

 

 Nature of appointment. The types of appointments under which 

temporary employees serve may have a bearing on whether they 

share a community of interest with permanent employees. This is 

particularly so since tenure, the period of time an employee may 

reasonably expect to serve under the current appointment, is 

granted and governed by the type of appointment. For example, 

pursuant to 5 CFR 316.301, a person serving a term appointment 

has a maximum tenure of four years. A person serving a 

temporary appointment is normally given an appointment of less 

than one year (5 C.F.R. 316.305). On the other hand, the CFR 
2

does not cover employees employed by nonappropriated fund 

(NAF) instrumentalities. In cases where the type of appointment 

given NAF employees is at issue, it is necessary to refer to agency 

regulations defining types of appointments. See Department of the 

Air Force, Langley Air Force Base, Virginia, 40 FLRA 111 (1991). 

 Varieties of appointments. Not all agencies use the same types 

of appointments to hire temporaries, nor do they use the same 

terms to describe appointments that represent less than 

permanent, full-time employment. Also, the government has 

instituted and abolished many types of appointments, some of 

which may still be reflected in recognitions and certifications. 

Therefore, it may be necessary to develop on the record the history 

of temporary employment at the agency. Thus, the inclusion or 

exclusion of particular employees is not dependent on the type of 

appointment. Once a determination is made whether these 

employees have a reasonable expectation of continued 

employment, then temporary employees are subject to the same 

eligibility criteria as applied to permanent employees. 

 Tenure vs. work schedule. Tenure should not be confused with 

work schedules. It is not necessary to work full time to be a 

permanent employee. For example, individuals with permanent 

competitive service appointments may have part time or 

intermittent work schedules. These employees enjoy permanent 

tenure and work less than 40 hours per week, or less than 26 pay 

periods a year, respectively. In contrast, temporary employees 

may work 40 hours per week, 26 pay periods a year, but have 

limited tenure because of the temporary appointment. 

 Probationary periods. Employees who are serving in their initial, 

probationary period are not considered temporary. Probationary 

employees are commonly included in bargaining units, if they have 

a reasonable expectation of permanent employment upon their 

completion of their probationary period. Department of the Navy, 

Navy Exchange, Mayport, Florida, 1 A/SLMR 143 (1971). 

See HOG 64 for specific guidance about this topic at hearing.

Other references:
Office of the General Counsel 

Representation Case Law Guide October 2000 

3

 U.S. Small Business Administration, Lower Rio Grande Valley 

District Office, 16 FLRA 180, 181 (1984) employees on six-month, 

temporary appointments; contrast with USDA, Animal and Plant 

Health Inspection Service, Plant Protection Quarantine, Pink 

Bollworm Rearing Facility, 6 FLRA 261 (1981). 

 Federal Mediation and Conciliation Service, 5 FLRA 28 (1981), 

summer employees and a temporary appointment of one year. 

 

U.S. Department of Commerce, National Oceanic and Atmospheric 

Administration, National Marine Fisheries Service, Northeast 

Region, 24 FLRA 922 (1986), one year appointments, with an 

extension of three years. 

 Department of Interior, Bureau of Mines, Twin Cities Research 

Center, Twin Cities, Minnesota, 9 FLRA 109 (1982), intermittent or 

WAE, "when actually employed". 

 U.S. Corps of Engineers, Kansas City District, Kansas City, 

Missouri, 15 FLRA 548 (1984) "Stay-in-School Program". 

 F.E. Warren, 48 FLRA 650 (1993) for types of temporary 

appointments in a nonappropriated fund activity. 

 Army and Air Force Exchange Service, Panama Area Exchange, 7 

FLRA 514 (1981), regularly scheduled, intermittent.

 Federal Deposit Insurance Corporation, 34 FLRA 50 (1989) 

temporary employees at the FDIC, which has unique appointment 

authorities. 

U.S. Department of Agriculture, Region Forester Office, Forest 

Services, Region 3, Santa Fe National Forest, Santa Fe, New 

Mexico, 1 A/SLMR 417 (1971) seasonal employees under 

temporary appointments have a reasonable expectation of 

continuous employment, as many of whom work specified periods 

of time each year, and share a community of interest with other 

employees in the proposed unit. See also U.S. Department of 

Interior, National Park Service, Rocky Mountain National Park, 

Estes Park, Colorado, 48 FLRA 1404 (1994). Regional Director 

dismissal of petition seeking to represent only Wage Grade 
4

employees (including WG seasonal employees) upheld because 

Wage Grade employees shared a community of interest with the 

General Schedule employees at the Park. However, there are 

some cases in which the parties agreed to exclude seasonal 

employees. 
Office of the General Counsel 

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Office of the General Counsel 

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1

TABLE OF AUTHORITIES

FEDERAL LABOR RELATIONS AUTHORITY DECISIONS

934th Tactical Airlift Group (AFRES), Minneapolis-St. Paul International 

Airport, Minneapolis, Minnesota, 13 FLRA 549 (1983) 20-1 

Adjutant General of Michigan, Air National Guard, Battle Creek, Michigan, 

11 FLRA 66 (1983) 26-1 

Air Force Logistics Command, United States Air Force Wright-Patterson 

Air Force Base, Ohio and International Association of Fire Fighters, 

(AFLC Council), AFL-CIO-CLC, (AFLC), 7 FLRA 210 (1981) 13-5, 13-9 

American Federation of Government Employees, Local 2004, 

47 FLRA 969 (1993) 1-2, 3-3, 3-5 

Area Maintenance Support Activities, 86th Army Reserve Command, 

Forest Park, Illinois, 32 FLRA 822 (1988) 6-2 

Army and Air Force Exchange Service, Base Exchange, Fort Carson, 

Fort Carson, Colorado, 3 FLRA 596, 599 (1980) 26-1 

Army and Air Force Exchange Service, Dallas, Texas and American 

Federation of Government Employees (AAFES), AFL-CIO, 

5 FLRA 657 (1981) 1-7, 13-5, 13-6, 

 13-9 

Army and Air Force Exchange Service, Panama Area Exchange, 7 FLRA 

514 (1981) 28-3 

Bureau of Indian Affairs, Gallup, New Mexico (BIA II) 34 FLRA 428 (1990) 7-4

Defense Industrial Plant Equipment Center, Memphis Tennessee, 

31 FLRA 1105 (1988) 6-1 

Defense Logistics Agency, Defense Contract Management Command, 

Defense Contract Management District, North Central, Defense Plant 

Representative Office-Thiokol, Brigham City, Utah (DPRO-Thiokol), 

41 FLRA 316 (1991). 1-2, 1-3, 1-6, 

 1-7, 2-2, 3-7, 3-24 
2

Defense Logistics Agency, Defense Supply Center Columbus, Columbus, 

Ohio (DLA Columbus), 53 FLRA 1114 (1998) 2-5, 3-13, 3-14, 3-25, 9-3 

Defense Mapping Agency, Aerospace Center, Kansas City Office, Kansas 

City, Missouri, 13 FLRA 52 (1983) 25-3 

Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 46 FLRA 

502 (1992) 1-1 

Defense Mapping Agency, Hydrographic/Topographic Center, Providence 

Office, Brookside Avenue, West Warwick, Rhode Island, Department of 

Defense, 13 FLRA 128 (1983) 25-3 

Department of Defense Dependents Schools, 6 FLRA 297 (1981)

 1-3 

Department of Defense Office of Dependent Schools, 36 FLRA 871 (1990) 16-3

Department of Defense, Defense Logistics Agency, Defense Contract 

Management Command, Defense Contract Management District 

North Central, 48 FLRA 285 (1993) 22-2 

Department of Defense, Department of the Army, 193rd Infantry Brigade 

Panama et al, 17 FLRA 471 (1981) 1-3 

Department of Defense, National Guard Bureau and National Federation of 

Federal Employees, Independent, Department of Defense, National Guard 

Bureau and National Association of Government Employees, 

13 FLRA 232 (1983) 13-10 

Department of Defense, U.S. Army Corps of Engineers, 5 FLRA 677 (1981) 13-7

Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 

4 FLRA 644, (1980) 25-2, 26-3 

Department of Energy, Western Area Power Administration (WAPA), 

38 FLRA 935 (1990) 14-2 

Department of Health and Human Services, 13 FLRA 39 (1983) 13-8 
Office of the General Counsel 

Representation Case Law Guide October 2000 

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Department of Health and Human Services, Boston Regional Office, 

Region I, 12 FLRA 475 (1983) 12-11 

Department of Health and Human Services, Region II, New York, New 

York, et al (DHHS), 43 FLRA 1245 (1992) 1-3, 3-19 

Department of Health and Human Services, Region IX, San Francisco, 

California, 12 FLRA 183 (1983) 12-14 

Department of Housing and Urban Development, Washington, D.C., 

35 FLRA 1249 (1990) 15-1, 19-1 

Department of Interior, Bureau of Mines, Twin Cities Research Center, 

Twin Cities, Minnesota, 9 FLRA 109 (1982) 28-3 

Department of Labor, Office of the Inspector General, Region I, Boston, 

7 FLRA 834 (1982) 17-2 

Department of Labor, Office of the Solicitor, Arlington Field Office, 

37 FLRA 1371 (1990) 15-4, 19-1, 21-1 

Department of State, Bureau of Consular Affairs, Passport Services, 

35 FLRA 1163 (1990) 4-2, 4-4, 12-11 

Department of the Air Force, 6th Missile Warning Squadron, Otis Air 

Force Base, 3 FLRA 111 (1980) 2-2, 3-16, 3-20 

Department of the Air Force, 90th Missile Wing (SAC), F.E. Warren Air 

Force Base, Cheyenne, Wyoming, 48 FLRA 650 (1990) 2-5, 28-3 

Department of the Air Force, Air Training Command, Randolph AFB, TX, 

12 FLRA 261 (1983) 13-8 

Department of the Air Force, Carswell Air Force Base, Texas, 

40 FLRA 221 (1991) 2-2,9-1, 9-2, 9-3 

Department of the Air Force, Hanscom Air Force Base, Bedford, 

Massachusetts, 14 FLRA 266, 268 (1984) 26-1 

Department of the Air Force, Langley, Virginia, 40 FLRA 111 (1989)

 2-5, 28-1 
4

Department of the Army, Concord District Recruiting Command, Concord, 

New Hampshire, 14 FLRA 73, 75 (1984) 12-5 

Department of the Army, Corpus Christi Army Depot, Corpus Christi, 

Texas, 16 FLRA 281, 282-83 (1984) 12-5 

Department of the Army, Headquarters, Fort Carson, and Headquarters, 

4th Infantry Division, Fort Carson, Colorado, 34 FLRA 30 (1989) 9-2 

Department of the Army, Headquarters, Fort Dix, Fort Dix, New Jersey 

(Fort Dix), 53 FLRA 287 (1997) 3-16, 15-2 
Office of the General Counsel 

Representation Case Law Guide October 2000 

5

Department of the Army, III Corps and Fort Hood, Fort Hood, Texas (Fort 

Hood), 51 FLRA 934 (1996) 12-6 

Department of the Army, U.S. Army Aviation Missile Command, Redstone 

Arsenal, Alabama (AMCOM II), 56 FLRA 126 (2000) 3-9, 3-14, 3-17, 

3-20, 3-25 

Department of the Army, U.S. Army Aviation Missile Command, Redstone 

Arsenal, Alabama (AMCOM I), 55 FLRA 640 (1999) 3-26 

Department of the Interior, Bureau of Indian Affairs, Navajo Area Office, 

45 FLRA 646 (1992) 26-2 

Department of the Interior, Bureau of Land Management, Sacramento, 

California, and Department of the Interior, Bureau of Land Management, 

Ukiah District Office, Ukiah, California, 53 FLRA 1417(1998) 3-13 

Department of the Interior, Bureau of Reclamation, Yuma, Arizona, 

37 FLRA 239 (1990) 15-2, 19-2 

Department of the Interior, National Park Service, 55 FLRA 311 (1999)

 2-5 

Department of the Interior, National Park Service, Western Regional Office, 

San Francisco, California, 15 FLRA 338 (1984) 4-3 

Department of the Interior, National Park Service, Western Regional Office, 

San Francisco, California, 10 FLRA 502 (1982) 4-3 

Department of the Navy, Automatic Data Processing Selection Office, 

7 FLRA 172 (1981). 22-1 

Department of the Navy, Naval Air Station, Point Mugu, California (Point 

Mugu), 26 FLRA 620 (1987) 9-2, 9-3 

Department of the Navy, Naval Computer and Telecommunications Area, 

Master Station-Atlantic, Base Level Communications Department, Regional 

Operations Division, Norfolk, Virginia, Base Communications Office -

Mechanicsburg, 56 FLRA 228 (2000) 1-5 

Department of the Navy, Naval Education and Training Center, Newport, 
6

Rhode Island, 3 FLRA 325 (1980) 27-1 

Department of the Navy, Naval Hospital, Submarine Base Bangor Clinic, 

Bremerton, Washington, 15 FLRA 125 (1984) 3-16 

Department of the Navy, Naval Supply Center, Puget Sound, Bremerton, 

Washington and Department of the Navy, Fleet Industrial Supply Center, 

Bremerton, Washington (FISC, Bremerton), 53 FLRA 173 (1997) 3-15, 3-24 

Department of the Navy, Naval Telecommunications Center, Ward Circle, 

6 FLRA 498 (1981) 25-1 

Department of the Navy, Naval Undersea Warfare, Engineering Station, 

Keyport, Washington, 7 FLRA 526 (1981) 27-1 

Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 

13 FLRA 571 (1984) 12-11 

Department of the Navy, Pearl Harbor Naval Shipyard Restaurant System, 

Pearl Harbor, Hawaii (Pearl Harbor) 28 FLRA 172 (1987) 8-1, 8-3 

Department of the Navy, U.S. Marine Corps and American Federation of 

Government Employees, AFL-CIO (Department of the Navy), 

8 FLRA 15 (1982) 13-6, 13-10 

Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, 

Colorado, 6 FLRA 52 (1981) 15-2 

Department of the Treasury, Internal Revenue Service, Washington, D.C. 

and Internal Revenue Service, Cincinnati District, Cincinnati, Ohio, 

36 FLRA 138 (1990) 20-1 

Department of Transportation, Federal Aviation Administration, New 

England Region (FAA), 20 FLRA 224 (1985) 1-3, 1-4, 1-7, 1-9, 2-2 

Department of Transportation, Washington, DC (DOT), 5 FLRA 646 (1981) 1-6,

 13-5, 13-6 

Division of Military And Naval Affairs (New York National Guard), Latham, 

New York and National Federation of Civilian Technicians (NYNG), 
Office of the General Counsel 

Representation Case Law Guide October 2000 

7

53 FLRA 111 (1997) 10-3 

Division of Military and Naval Affairs, New York National Guard, Latham, 

New York, and Selfridge ANG, Michigan and Alaska National Guard (New 

York NG and Alaska NG), 56 FLRA 139 (2000) 15-3 

Duluth International Airport, 4787th Air Base Group, Duluth, Minnesota, 

15 FLRA 858 (1984) 4-3 

Federal Aviation Administration, Aviation Standards National Field Office 

(Aviation Standards), 15 FLRA 60, 63 (1984) 3-8, 3-9 

Federal Deposit Insurance Corporation (FDIC), 34 FLRA 50 (1989)

 2-4, 28-3 

Federal Mediation and Conciliation Service, 5 FLRA 28 (1981) 28-2 

Federal Mediation and Conciliation Service, 52 FLRA 1509 (1997)

 18-1 

Federal Mediation and Conciliation Service, Region 7, San Francisco, 

California, 3 FLRA 138 (1980) 18-1 

Federal Trade Commission (FTC I), 15 FLRA 247 (1984) 15-3 

Federal Trade Commission (FTC II), 35 FLRA 576 (1990). 2-3, 3-20, 

15-3 

Florida Air National Guard, St. Augustine, Florida, 43 FLRA 1475 (1992)

 12-15 

Florida National Guard, St. Augustine, Florida (FNG II), 34 FLRA 223 

(1990) 7-1, 

 7-4 

Florida National Guard, St. Augustine, Florida (FNG I), 25 FLRA 728 (1987) 7-1,

 7-2, 12-13 

Fort Bragg Association of Teachers and U.S. Department of the Army, 
8

Fort Bragg Schools, Fort Bragg, North Carolina, 44 FLRA 852 (1992).

 12-8 

Fort Knox Dependents Schools, 5 FLRA 33 (1981) 16-2 

General Services Administration, Las Vegas Fleet Management Center, 

Sparks Field Office, Sparks, Nevada (GSA Sparks), 48 FLRA 1258 (1993) 2-1, 

General Services Administration, National Capital Region, 

5 FLRA 285 (1981) 1-3, 3-17 

Headquarters III Corps and Fort Hood, Fort Hood, Texas, 13 FLRA 479 

(1983) 26-1 

Headquarters, 97th U.S. Army Reserve Command, Fort George G. Meade, 

Maryland, 32 FLRA 567 (1988) 3-20 

Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 

5 FLRA 339 (1981) 20-2 

Headquarters, U.S. Army Materiel Development and Readiness Command, 

13 FLRA 679 (1983) 13-8 

Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North 

Carolina, 36 FLRA 237 (1990) 3-19 

HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 

34 FLRA 21 (1990) 15-2 

Immigration and Naturalization Service, 12 FLRA 309 (1983) 2-5 

International Communication Agency and the National Federation of 

Federal Employees, Local 1418 and International Communication Agency 

and the American Federation of Government Employees, Local 1812, 

5 FLRA 97 (1981) 9-2 

Kansas Army National Guard, Topeka, Kansas (Kansas ARNG), 47 FLRA 

937 (1993) 12-8 

Kennedy Center for the Performing Arts, Washington, D.C., 

45 FLRA 835 (1992) 16-1 
Office of the General Counsel 

Representation Case Law Guide October 2000 

9

Library of Congress and Fraternal Order of Police, Library of Congress 

Police Force Labor Committee (Library of Congress), 16 FLRA 429 (1984) 2-2, 

 9-1, 9-3 

Local No. 3, International Federation of Professional and Technical 

Engineers, AFL-CIO-CLC, 7 FLRA 626 (1982) 1-6 

Morale, Welfare and Recreation Directorate, Marine Corps Air Station, 

Cherry Point, North Carolina (Morale, Welfare), 45 FLRA 281 (1992)

 3-5, 3-14 

National Aeronautics and Space Administration, Headquarters, 

Administrative Division, 12 FLRA 152 (1983) 7-1 

National Archives and Records Service, General Services Administration 

and Local 2578, American Federation of Government Employees, AFLCIO, 9 FLRA 381 (1982) 15-1 

National Association of Government Employees, Service Employees 

International Union, Local 5000, AFL-CIO-CLC and Service Employees 

International Union, AFL-CIO-CLC and Department of Veterans Affairs, 52 

FLRA 1068 (1997) 9-3 

National Mediation Board, 54 FLRA 1474 (1998) 18-2 

National Mediation Board, 56 FLRA 1 (2000) 18-3 

Naval Air Station, Meridian, Michigan, 9 FLRA 22 (1982) 3-17 

Naval Aviation Depot, Naval Air Station, Alameda, California, 

47 FLRA 242 (1993) 7-1 

Naval Facilities Engineering Service Center, Port Hueneme, California 

(NFESC), 50 FLRA 363(1995) 2-3, 3-9, 3-11, 3-12, 3-14, 3-18, 3-19, 3-21, 

3-22, 12-6 

Naval Sea Support Center Atlantic Detachment, 7 FLRA 626 (1982) 

 2-2 

Naval Submarine Base, New London Naval Submarine School, Navy 

Submarine Support Facility New London, Personnel Support Activity New 

London and Naval Hospital Groton, 46 FLRA 1354 (1993) 13-7 
10

New Mexico Army and Air National Guard, 56 FLRA 145 (2000) 7-4, 7-5, 

7-11 

Office of Hearings and Appeals, Social Security Administration, 

16 FLRA 1175 (1984) 9-1 

Office of Personnel Management, 5 FLRA 238 (1981) 25-3 

Office of the Secretary, Headquarters, Department of Health and Human 

Services, 11 FLRA 681 (1983) 12-14 

Overseas Private Investment Corporation (OPIC), 

36 FLRA 480 (1990) 4-2-4-4, 12-9 

Phoenix Area Indian Health Service, Owyhee Service Unit (Owyhee PHS 

Indian Hospital, and Elko Clinic) Owyhee, Nevada, 53 FLRA 1221(1998)

 16-3 

Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam 

Memorial Hospital, Sacaton, Arizona, 53 FLRA 1200 (1998) 16-3 

Professional Air Traffic Controllers Organization, Affiliated with MEBA, AFLCIO, 7 FLRA 34 (1981) 10-2 

Red River Army Depot, Texarkana, Texas, 2 FLRA 659 (1980). 19-3 

Securities and Exchange Commission, 56 FLRA 312 (2000) 1-9 

Small Business Administration, 34 FLRA 392 (1990) 17-1 

Social Security Administration, District Office, Valdosta, Georgia, 

52 FLRA 1084 (1997) 3-14, 3-24, 3-25 

Tick Eradication Program, Veterinary Services, Animal and Plant Inspection 

Service, United States Department of Agriculture, 15 FLRA 250 (1984)

 19-2 

Trident Refit Facility, Bangor, Bremerton, Washington, 5 FLRA 606 (1981) 2-4
Office of the General Counsel 

Representation Case Law Guide October 2000 

11

U. S. Department of the Navy, Marine Corps Base, Camp Pendleton, 

California, 8 FLRA 276 (1982)27-1 

U. S. National Park Service, Santa Monica Mountains Recreation Area, 

Agoura Hill, California, 50 FLRA 164 (1995) 27-1 

U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 

31 FLRA 938 (1988) 2-3 

U.S. Army Communications System Agency, Fort Monmouth, New Jersey, 

4 FLRA 627 (1980) 22-2 

U.S. Army District Recruiting Command - Philadelphia, 12 FLRA 409 

(1983) 20-1 

U.S. Army Engineer Activity, Capital Area, Fort Myer, Virginia, 

34 FLRA 38 (1989) 28-1 

U.S. Army Plant Representative Office, Mesa, Arizona, 35 FLRA 181 

(1990) 19-1 

U.S. Army Reserve Command, 88th Regional Support Command, Fort 

Snelling, Minnesota, 53 FLRA 1174 (1998) 7-11 

U.S. Army Support Command, Hawaii, 13 FLRA 529 (1983) 13-8 

U.S. Army Training and Doctrine Command, 11 FLRA 105 (1983)

 13-7 

U.S. Corps of Engineers, Kansas City District, Kansas City, Missouri, 

15 FLRA 548 (1984) 28-3 

U.S. Department of Agriculture, Forest Service, Intermountain Region, 

Challis National Forest, 23 FLRA 349 (1981) 26-2 

U.S. Department of Commerce, Bureau of the Census, 17 FLRA 667 

(1985) 12-11 

U.S. Department of Commerce, National Oceanic and Atmospheric 

Administration, National Marine Fisheries Service, Northeast Region, 

24 FLRA 922 (1986) 15-2, 
12

 28-2 

U.S. Department of Defense Dependents School, Panama Region, 

44 FLRA 419 (1992) 12-6 

U.S. Department of Defense, Army National Guard, Camp Keyes, 

Augusta, Maine, 34 FLRA 59 (1989) 12-10, 12-14 

U.S. Department of Defense, Dependents Schools and Overseas 

Education Association, NEA, 48 FLRA 1076 (1993) 1-2 

U.S. Department of Defense, National Guard Bureau, 55 FLRA 657 (1999) 13-10

U.S. Department of Defense, National Guard Bureau, Division of Military 

and Naval Affairs, Latham, New York, 46 FLRA 1468 (1993) 7-4, 8-3 

U.S. Department of Energy, Oak Ridge Operations Office, Oak Ridge, 

Tennessee (DOE Oak Ridge), 15 FLRA 130 (1984) 3-16, 3-17 

U.S. Department of Health and Human Services, Social Security 

Administration (SSA), 44 FLRA 230 (1992) 12-4, 12-5, 12-10 

U.S. Department of Housing and Urban Development, 

34 FLRA 207(1990) 20-1 

U.S. Department of Housing and Urban Development, Headquarters, 

41 FLRA 1226 (1991) 24-1 

U.S. Department of Interior, National Park Service, Rocky Mountain 

National Park, Estes Park, Colorado, 48 FLRA 1404 (1994). 28-3 

U.S. Department of Justice, 17 FLRA 58 (1985) 13-6-13-8 

U.S. Department of Justice, 52 FLRA 1093 (1997) 25-2 

U.S. Department of Justice, Board of Immigration Appeals, 

47 FLRA 505 (1993) 22-1 

U.S. Department of Justice, Executive Office for Immigration Review, 

Office of the Chief Immigration Judge, Chicago, Illinois (OCIJ Chicago), 
Office of the General Counsel 

Representation Case Law Guide October 2000 

13

48 FLRA 620 (1993) 1-4, 1-7, 2-2 

U.S. Department of Justice, Federal Bureau of Prisons, U.S. Penitentiary, 

Marion, Illinois (DOJ), 55 FLRA 1243 (2000) 17-1, 19-1, 19-2 

U.S. Department of Labor and Operations Maintenance Service, Inc. 

(Keystone Job Corps Center), 32 FLRA 622 (1988) 16-2 

U.S. Department of Labor, 23 FLRA 464 (1986) 9-2, 18-2 

U.S. Department of Labor, 33 FLRA 265 (1988) 19-2, 21-2 

U.S. Department of Labor, Mine Safety and Health Administration, 

Southeastern District, 40 FLRA 937 (1991) 24-1 

U.S. Department of Labor, Pension and Welfare Benefits Administration, 

38 FLRA 65 (1990) 3-18, 18-1, 18-2 

U.S. Department of the Air Force, Air Force Materiel Command, WrightPatterson Air Force Base (Wright-Patterson AFB), 47 FLRA 602 (1993)

 1-2, 1-4, 3-19, 3-20 

U.S. Department of the Air Force, Air Force Materiel Command, WrightPatterson Air Force Base, Ohio (AFMC), 55 FLRA 359 (1999) 3-15, 13-4

, 13-5 

U.S. Department of the Air Force, Carswell Air Force Base, Texas, 

40 FLRA 221 (1991) 15-2 

U.S. Department of the Air Force, Edwards Air Force Base, California 

(Edwards), 35 FLRA 1311 (1990) 2-1, 2-2 

U.S. Department of the Army, Army Aviation Systems Command and Troop 

Support Command, St. Louis, Missouri, 36 FLRA 587 (1990) 26-3 

U.S. Department of the Army, Army Ordnance Missile and Munitions 

Center and School, Redstone Arsenal, Alabama, 35 FLRA 987 (1990)

 25-3 

U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois

(Rock Island), 46 FLRA 76 (1992) 7-3-7-5 
14

U.S. Department of the Army, U.S. Army Law Enforcement Command 

Pacific, Fort Shafter, Hawaii, 53 FLRA 1602 (1998) 15-3 

U.S. Department of the Army, Watervliet Arsenal, Watervliet, New York 

(Watervliet), 34 FLRA 98 (1989) 12-8 

U.S. Department of the Army, Wilmington District, Corps of Engineers, 

Wilmington, North Carolina, unnumbered Order Denying Application for 

Review in Case No. AT-RP-80059, (1999) 23-2 

U.S. Department of the Interior, Bureau of Indian Affairs, Gallup, New 

Mexico, 35 FLRA 99 (1990) 7-4 

U.S. Department of the Interior, Bureau of Indian Affairs, Gallup, New 

Mexico, 33 FLRA 482 (1988) 7-4 

U.S. Department of the Interior, Bureau of Land Management, Phoenix, 

Arizona (BLM), 56 FLRA 202 (2000) 4-1, 4-3, 7-4, 7-5, 7-11 

U.S. Department of the Interior, Indian Health Service, Gallup Indian Health 

Center, Gallup, New Mexico, 48 FLRA 890 (1993) 12-12 

U.S. Department of the Interior, Redwood National Park, Crescent City, 

California, 48 FLRA 666 (1993) 12-14 

U.S. Department of the Interior, U.S. Geological Survey, Caribbean District, 

46 FLRA 832 (1992) 2-2 

U.S. Department of the Navy, Commander, Naval Base, Norfolk, Virginia, 

56 FLRA 328 (2000) 3-5 

U.S. Department of the Navy, Navy Audit Service, Southeast Region, 

46 FLRA 512 (1992) 17-2 

U.S. Department of the Navy, U.S. Naval Station, Panama, 

7 FLRA 489 (1981) 25-3 

U.S. Department of the Treasury, Bureau of Engraving and Printing (BEP), 

49 FLRA 100 (1994) 9-1-9-3 
Office of the General Counsel 

Representation Case Law Guide October 2000 

15

U.S. Department of the Treasury, Internal Revenue Service, Detroit District, 

Detroit, Michigan, 38 FLRA 52 (1990) 16-2 

U.S. Department of the Treasury, Office of Chief Counsel, 

32 FLRA 1255 (1988) 26-3 

U.S. Department of Transportation, U.S. Coast Guard Finance Center, 

Chesapeake, Virginia (Coast Guard), 34 FLRA 946 (1990) 2-4, 3-12, 

3-14, 12-13 

U.S. Department of Treasury, Internal Revenue Service and U.S. 

Department of the Treasury, Office of the Chief Counsel, Internal Revenue 

Service, 56 FLRA 486 (2000) 13-10 

U.S. Department of Veterans Affairs (Veterans Affairs), 35 FLRA 172 

(1990) 9-1, 

 9-2, 10-2 

U.S. Department of Veterans Affairs, Hunter Holmes McGuire Medical 

Center, 54 FLRA 471(1998) 16-3 

U.S. Department of Veterans Affairs, Veterans Administration Medical 

Center, Allen Park, Michigan, 35 FLRA 1206 (1990). 26-2 

U.S. Environmental Protection Agency, Washington, D.C. and National 

Federation of Federal Employees, Local 2050 (EPA), 52 FLRA 772 (1996) 7-6

U.S. Information Agency, Washington, D.C. and American Federation of 

Government Employees, Local 1812, AFL-CIO, (USIA), 53 FLRA 999 

(1997) 10-3 

U.S. Naval Station, Panama, 7 FLRA 489 (1981) 20-1 

U.S. Small Business Administration, 32 FLRA 847 (1988) 15-1 

U.S. Small Business Administration, Lower Rio Grande Valley District 

Office, 16 FLRA 180 (1984) 28-2 

Union of Federal Employees (UFE), 41 FLRA 562 (1991) 7-4, 7-5 

United States Attorney’s Office for the District of Columbia, 
16

37 FLRA 1077 (1990) 21-1, 23-1, 25-3 

United States Department of Labor, Office of the Solicitor, Region III, 

8 FLRA 286 (1982) 18-1 

United States Department of Labor, Pension and Welfare Benefits 

Administration, 30 FLRA 1229 (1988) 18-2 

United States Department of the Navy, Fleet and Industrial Supply Center, 

Norfolk, Virginia, (FISC, Norfolk), 

52 FLRA 950 (1997) 1-1-1-6, 1-8, 3-2, 3-3, 3-7 ,3-8, 3-13, 3-15, 3-19, 

 3-21, 3-22, 3-24, 3-25, 13-6, 

USDA, Animal and Plant Health Inspection Service, Plant Protection 

Quarantine, Pink Bollworm Rearing Facility, 6 FLRA 261 (1981) 28-2 

Utah Army National Guard, U.S. Department of the Army, Draper, Utah 

(Utah ARNG), an unnumbered decision dated April 16, 1999 7-5, 7-11, 

7-12 

Veterans Administration Medical Center, Allen Park, Michigan, 

34 FLRA 423 (1990) 26-2 

Veterans Administration Medical Center, Brooklyn, New York, 

8 FLRA 289 (1982) 1-7 

Veterans Administration Medical Center, Lyons, New Jersey, 

14 FLRA 46 (1984) 27-2 

Veterans Administration Medical Center, Prescott, Arizona, 

29 FLRA 1313 (1987) 15-4 

Veterans Administration Regional Office, Portland, Oregon, 

9 FLRA 804 (1982) 23-2 

Veterans Administration, Washington, D.C. and Veterans Administration 

Medical Center, Salisbury, North Carolina, 11 FLRA 176 (1983) 27-2 
Office of the General Counsel 

Representation Case Law Guide October 2000 

17

A/SLMR DECISIONS

Bureau of Indian Affairs, Navajo Area, New Mexico, 1 A/SLMR 459 (1971) 12-2

Defense Contract Audit Agency, 6 A/SLMR 251 (1976) 3-9 

Defense Supply Agency, Defense Contract Administration Services Region, 

San Francisco, California, et al.(DCASR), 4 FLRC 669 (1976) 1-6, 1-7 

Department of Defense, Overseas Dependent Schools, 

1 A/SLMR 516 (1971) 12-15 

Department of State, Passport Office, Chicago Passport Agency, Chicago, 

Illinois, 8 A/SLMR 946 (1978) 1-6 

Department of the Army, 89th Army Reserve Command, Wichita, Kansas

(Department of the Army), 7 A/SLMR 796 (1977) 3-9 

Department of the Navy, Navy Exchange, Mayport, Florida, 

1 A/SLMR 143 (1971) 28-2 

Department of the Navy, Navy Exchange, Miramar, California, 

6 A/SLMR 44 (1976) 12-4 

Department of Transportation, Federal Aviation Administration, Southwest 

Region, Tulsa Airway Facilities Sector (Tulsa AFS), 3 FLRC 235, 237 

(1975) 1-3, 1-5, 1-8, 

 3-3, 3-4 

Education Division, Department of Health, Education and Welfare, 

Washington, D.C., 7 A/SLMR 312 (1977) 13-6 

Federal Aviation Administration, 2 A/SLMR 340 (1972) 12-1, 12-7 

Federal Reserve Board, Board of Governors, Washington, D.C., 

Case No. 22-08347(RO), appealed denied (1978) 16-2 

General Services Administration, Region 4, 6 A/SLMR 272 (1976)

 12-14 
18

Internal Revenue Service (IRS), 7 A/SLMR 357 (1977) 13-4 

Internal Revenue Service, Washington, DC and National Treasury 

Employees Union, 6 FLRC 289 (1978). 13-4 

Navy Exchange, Mayport, Florida, 1 A/SLMR 142 (1970) 16-2 

Navy Public Works Center, San Francisco Bay (Public Works Center), 

6 A/SLMR 142 (1976) 3-9 

Report on a Ruling of the Assistant Secretary No. 44, 2 A/SLMR 637 (1972) 2-2

U.S. Army Corps of Engineers, Mobile District, 2 A/SLMR 486 (1972)

 12-2 

U.S. Customs Service, 8 A/SLMR 221, A/SLMR No. 991 (1978) 13-10 

U.S. Department of Agriculture, Forest Service, Francis Marion and Sumter 

National Forests, 2 A/SLMR 596 (1972) 28-1 

U.S. Department of Agriculture, Region Forester Office, Forest Services, 

Region 3, Santa Fe National Forest, Santa Fe, New Mexico, 

1 A/SLMR 417 (1971) 28-1, 

 28-3 

U.S. Mortuary, Oakland Army Base, Oakland, California (U.S. Army 

Mortuary), 6 FLRC 330 (1978) 12-7 

U.S. Mortuary, Oakland Army Base, Oakland, California (U.S. Army 

Mortuary), 8 A/SLMR 593 (1978). 12-7 

Veterans Administration Center, Togus, Maine, 3 A/SLMR 568 (1973)

 12-4 

Veterans Administration Hospital, Montrose, New York (Montrose), 

4 A/SLMR 858 (1974) 7-2, 7-3 

VISTA, 1 A/SLMR 445 (1974) 16-2 
Office of the General Counsel 

Representation Case Law Guide October 2000 

19
20

NATIONAL LABOR RELATIONS BOARD DECISIONS

Appalachian Shale Products (Appalachian Shale), 121 NLRB 1160 (1958) 12-4

Associated Day Care, 269 NLRB 178 (1984) 19-3 

Boston Gas Company, 221 NLRB 628 (1975) 3-14, 3-26 

Celanese Corp., 95 NLRB 664 (1951) 4-4 

Citisteel USA, 312 NLRB 815 (1993) 12-3 

Douglas Motors Corp., 128 NLRB 307 (1960) 2-5 

Dun & Bradstreet-II, 240 NLRB 162 (1979) 21-1 

Georgia Kaolin Co., 287 NLRB 485 (1987) 8-3 

Hershey Chocolate Corp. (Hershey Chocolate), 121 NLRB 901 (1958)

 8-1 

Hoover Co., 55 NLRB 1321 (1944) 21-2 

Hydrolines, Inc., 305 NLRB 416, 422 (1991) 3-12 

Mallinckrodt Chemical Works, 84 NLRB 291 (1949) 12-1 

Martin Marietta Co., 270 NLRB 821 (1984) 3-14, 3-25 

Melbet Jewelry Co., 180 NLRB 107, 110 (1969) 3-18 

Renaissance Center Partnership, 239 NLRB 1247 (1979). 3-19, 3-25 

Seven-Up / Canada Dry Bottling Co., 281 NLRB 943 (1986) 3-26 

Southwestern Portland Cement Co., 126 NLRB 931, 934 (1960) 8-3 

Swift and Co., 145 NLRB 756, (1963) 8-3 

Syscon International, Inc., 322 NLRB 539 (1996) 8-1 
Office of the General Counsel 

Representation Case Law Guide October 2000 

Terminal System Inc., 127 NLRB 979 (1960) 10-2 

The Louisville Railway Co., 90 NLRB 678, (1950) 8-3 

United Transports, Inc., 107 NLRB 1150 (1954) 2-5 

Yates Industries, 264 NLRB 1237 (1982) 8-1 

FEDERAL CIRCUIT COURT OF APPEALS DECISIONS

AFGE v. Reagan, 870 F.2d 723 (D.C. Cir., 1982) 25-1 

Dalewood Rehabilitation Hospital, Inc. v. NLRB, 566 F.2d 77, 80 

(9th Cir. 1977) 4-4 

International Union of Petroleum & Industrial Workers v. NLRB, 980 F.2d 

774 (D.C. Cir. 1992) 3-12 

NLRB v. Lorimar Productions, Inc., 771 F.2d 1294 (9th Cir. 1985) 21-2 

Thomas Industries, Inc. v. NLRB, 687 F.2d 863, 868 (6th Cir. 1982)

 4-4 

U.S. Department of Interior v. FLRA, 23 F.3d 518 (DC Cir. 1994) 14-1 

U.S. Department of Interior v. FLRA, 26 F.3d 179 (DC Cir. 1994) 14-1 

United States Department of Energy v. FLRA (Department of Energy), 

880 F.2d 1163 (10th Cir. 1989) 14-1 

NLRB v. Hershey Chocolate Corp., 297 F.2d 286 (3rd Cir. 1981) 8-1 

U.S. Department of Energy, Western Area Power Administration, Golden, 

Colorado v. FLRA, No. 87-2062 (10th Cir. 1989) 14-1 

SUPREME COURT DECISIONS
22

Cole v. Young, 76 S. Ct. 861, 351 U.S. 536 (1956). 25-2 

Fall River Dyeing & Finishing Corp. v. NLRB (Fall River), 482 U.S. 27 

(1987) 2-4, 

 3-12, 3-13, 12-3 

NLRB v. Burns Security Services, 406 U.S. 272 at 280 (1972) 12-3 

NLRB v. Financial Institution of Employees of America, Local 1182 

(Financial Institution), 475 U.S. 192 (1986) 7-3, 7-4 

NLRB v. Hendricks County Rural Electric Membership Corp., 

454 U.S. 170 (1981) 19-3 

PUBLICATIONS

124 Cong. Rec. H9634 (daily ed. Sept. 13, 1978) 13-5 

A Policy for Employee-Management Cooperation in the Federal Sector, 

November 30, 1961 1-3 

Federal Register, Vol. 60, No. 150 ( August 4, 1995) 13-3 

Federal Register, Vol. 60, No. 250 (December 29, 1995) 13-3 

Labor-Management Relations in Federal Service, 1975, published by the 

Federal Labor Relations Council, FLRC 75-1 (4/75). 3-3 

Legislative History of the Federal Service Labor-Management Relations 

Statute, Title VII of the Civil Service Reform Act of 1978, S. Rep. No. 

95-969 (1978) and H. Rep. No. 95-1403. 13-3 

Study Committee Report which led to the issuance of Executive Order 

11491 in 1969, and as amended in 1975 1-2 
Office of the General Counsel 

Representation Case Law Guide October 2000 

 

OTHER OFFICE OF THE GENERAL COUNSEL 

 RESOURCE MANUALS 

The Representation Case Handling Manual (REP CHM) provides 

procedural and operational guidance t the General Counsel ‘s staff when 

processing representation petitions filed pursuant to Party 2422 of the 

FLRA’s regulations. Part One discusses processing petitions from 

providing substantive issues to investigating and resolving the underlying 

representation matters, and to issuing a certification or taking other final 

action. Part One tracks, for the most part, the subject matter format in the 

representation regulations. Part Two consists of resources that the 

General Counsel’s staff uses when processing petitions, including a Cross 

Reference Table, Flow Charts, Appendices, FLRA Forms and Documents, 

and sample Figures. 

The Representation Case Law Guide (RCL) presents a variety of relevant 

substantive issues that arise when processing representation petitions and 

unfair labor practice cases that raise representation issues. The RCL 

defines each topic, discusses relevant case law and sets forth an analytical 

framework for deciding each case consistently and properly. 

The Unfair Labor Practice Case Handling Manual (ULPCHM) provides 

procedural and operational guidance to the General Counsel’s staff when 

processing unfair labor practice charges filed pursuant to Subpart A Party 

2423 of the FLRA’s regulations. It is divided into 5 Parts that address 

various topics/issues that arise during distinct phases of the ULP processfrom pre-charge through pre and post investigation. It also codifies the 

OGC’s policies with respect to: Facilitation, Intervention, Training, and 

Education; Quality of Investigators; Scope of Investigations; Injunctions; 

Prosecutorial Discretion; Settlements; and Appeals. As appropriate, the 

ULPCHM references relevant case law and provides for uniformity and best 

practices; criteria and principles governing Regional discretion and 

judgment; and model and sample forms and letters. 
24

The Litigation Manual (LM) provides comprehensive guidance to regional 

Trial Attorneys in prosecuting ULP cases. The Manual covers each aspect 

of the trial process-from the issuance of a complaint and notice of hearing 

to the Authority’s decision and order. Where appropriate, it refers to OGC 

Policy and relevant case law, and contains many examples of litigation 

techniques, both in the body of the Manual (Binder I) which concerns 

substantive litigation guidelines, and in the Attachments section of the 

Manual (Binder II) which contains a compilation of forms, policies, OGC 

Guidances, or models relating to the subject matter covered in Binder I.