BARGAINING UNIT 

DETERMINATIONS

Appropriate Units 

Exclusions from Units
TWO AREAS BEING COVERED

 Appropriateness of unit

 Statutory exclusions from any unit

 Most-often encountered ones
APPROPRIATE UNIT

 Criteria Established – 5 U.S.C.§7112(a) 

 Employees Share in a Clear and 

Identifiable Community of Interest

 Unit Promotes Effective Dealings with the 

Operations of the Agency

 Unit Promotes Efficiency of Operations of 

the Agency Involved
APPROPRIATE UNIT

 An appropriate unit

 Statute does not describe THE appropriate 

unit

 Statute does not require THE MOST 

appropriate unit

 An organization may have many 

appropriate units

 Each unit must satisfy the criteria of 

section 7112(a)
COMMUNITY OF INTEREST

 Purpose: To ensure that it is possible for employees 

to deal collectively with management 

 Factors to consider – whether employees:

 Are part of same organizational structure

 Are subject to same chain of command

 Support same mission

 Have similar/related duties

 Are subject to same general working conditions

 Are governed by same personnel, LMR policies

 Are serviced by same personnel office
EFFECTIVE DEALINGS 

 Pertains to the relationship between 

management and the union 

 Factors to consider –

 Past collective bargaining experience of 

parties

 Level at which LMR policy is set by agency

 Location and scope of authority of 

personnel office which will administer the 

policies
EFFICIENCY OF OPERATIONS

 Whether the proposed unit bears a rational 

relationship to operational and organizational 

structure of the agency 

 Factors to consider –

 Effect of unit on agency costs, use of resources, 

productivity

 Level at which LMR policy is set by agency

 Location and scope of authority of personnel office 

administering policies
EXCLUSIONS FROM UNITS

 Under 5 U.S.C. §7112(b) units may not 

include:

 Management officials or supervisors 

 Unique units containing management officials or supervisors allowed 

under 5 U.S.C. §7135;

 Confidential employees

 Employees engaged in Federal personnel work

 Employees engaged in national security work 
Unit Exclusions

 For any excluded position –

 Nature and type of work performed

 Position description helpful, not dispositive

 What does the employee do???
MANAGEMENT OFFICIAL

 Defined in 5 U.S.C.§7103(a)(11)

 Individual in a position, whose duties and 

responsibilities require or authorize the 

individual to formulate, determine, or 

influence the policies of the agency
Management Officials

 Create, establish or prescribe general 

principles, plans or courses of action for an 

agency;

 Decide or settle upon general principles, 

plans or courses of action for an agency; or

 Bring about or obtain a result as to the 

adoption of general principles, plans or 

courses of action for an agency. 
Management Officials 

 Positions found to be excluded:

 Employees wrote and interpreted Air Force Regulations

 Employees had complete responsibility for negotiating and 

administering a contract with a private corporation, and had 

final signatory authority to bind the Activity and its resources 

 Member of the Board of Immigration and Appeals, where 

Board’s decisions were precedential and binding on 

Immigration Judges and the Agency

 Attorney made independent decisions (not reviewed) for 

Agency regarding energy matters; made decisions for 

Agency on foreclosure of multi-million dollar barge terminal 

facility and disposal of alternative fuel plants
Not Management Officials

 Resource persons, or professionals who 

offer advice to decision-makers

 Attorneys engaged in litigation on behalf of the Agency and 

gave legal advice to Agency officials who promulgated policy

 Management Analyst reviewed decisions of the Activity for 

improving and approving the Activity’s new computer 

system, and his recommendations were reviewed by higher 

levels with ultimate decision being made by the Activity’s 

manager 
Not Management Officials

 Those who implement, interpret or 

effectuate policies

 Examiners who assigned credit ratings to Credit Unions 

applied existing policies and regulations

 Contract Administrators interpreted and applied regulations 

and policies and had decision-making authority within that 

framework
SUPERVISORS

 Defined in 5 U.S.C. 7103(a)(10) as 

employees who have the authority to:

 hire, direct, assign, promote, reward, transfer, 

furlough, layoff, recall, suspend, discipline or 

remove employees

 adjust their grievances 

 or effectively recommend such action

 “Appraise employees” is not listed

 Appraising employees is considered when 

appraisal is used for retention, awards, layoff
Supervisor

 Exercise of one indicia excludes position 

from bargaining unit

 Exercise of authority requires the 

consistent exercise of independent 

judgment

 An issue in lead positions

 Must supervise a federal employee
Supervisory Firefighters & Nurses

 Must devote a preponderance of their 

employment time to exercising supervisory 

authorities

 Preponderance = majority

 Employment time = work time as determined by 

the record in a case 

 Does not mean entire 24-hour shift, for firefighters
CONFIDENTIAL EXCLUSION

 Defined in 5 U.S.C. 7103(a)(13)

 Employee who acts in a confidential 

capacity with respect to an individual who 

formulates or effectuates management 

policies in the field of labor-management 

relations
Confidential Exclusion

 Labor-nexus test: An employee is a 

confidential when –

 There is evidence of a confidential working 

relationship between an employee and the 

employee’s supervisor or other official; and

 The supervisor or other official is significantly 

involved in labor-management relations
Labor-Nexus Test: 

Other Official’s Work

 Do the official’s responsibilities include:

 Developing negotiation strategies 

 Developing bargaining proposals for 

management

 Deciding grievances 

 Conducting negotiations 

 Preparing arbitration cases for hearing

 Handling ULPs
Confidential

 Employee must be acting in confidential 

capacity to official while official is 

engaged in labor-management 

relations. Examples:

 Seeing or preparing grievance responses

 Attending meetings where officials 

deliberate management’s response to a 

union bargaining proposal
Confidential

 Other positions found to be 

confidential:

 Employees, who, in the normal 

performance of their duties, obtain 

advance information of management’s 

position with regard to contract 

negotiations, the disposition of grievances, 

and other labor relations matters
CONFIDENTIAL -- WARNING

 Merely seeing or processing information 

of a personal nature about other 

employees does not make employee a 

confidential

 Employee who sees SSNs, change of 

marital status documents

 Employee who sees EEO case documents
FEDERAL PERSONNEL WORK

 Employee’s work must directly relate to 

personnel operations of the agency

 Work must be more than clerical in 

nature

 Employee must exercise independent 

judgment and discretion in personnel 

duties
Federal Personnel Work

 Positions excluded under exemption:

 Management analysts conducted contracting-out 

studies

 Employee development specialist developed and 

implemented region-wide training program

 But not:

 Employee development specialist made 

recommendations regarding training, scheduled it

 Legal assistant maintained case files, prepared 

documents
NATIONAL SECURITY

 Employees engaged in security work 

which directly affects national security

 Three aspects

 Security work

 Directly affects

 National security
Security Work

 Guarding, shielding, protecting, 

preserving

 Design, analysis, monitoring of security 

systems, procedures

 Regular use of, or access to, classified 

information

 Security clearance is factor, but not 

dispositive
Directly Affects

 Straight bearing or unbroken 

connection that produces a material 

influence on, or alteration to, national 

security

 No intervening steps between the 

employees’ duties and the potential effects 

on national security
National Security

 Sensitive activities of the government --

 Directly related to the protection and 

preservation of the military, economic and 

productive strength of the U.S. 

 Includes security of the Government from 

sabotage, subversion, foreign aggression 

and any other illegal acts which adversely 

affect the national defense
National Security

 National security exclusion found:

 Physical security specialists designed and 

monitored security systems related to SSA’s and 

IRS’ critical infrastructure

 Protocol officer accessed classified information to 

perform work

 Exclusion not found:

 Inspectors performed security work, but no direct 

affect on national security
Management Official

 Dep’t of the Navy, Automatic Data Processing Selection Office, 

7 FLRA 172 (1981)(early Authority decision on topic, often cited 

in subsequent Authority decisions)

 Headquarters, 1947th Administrative Support Group, U.S. Air 

Force, Wash., D.C., 14 FLRA 220 (1984) (employees wrote 

Agency regulations)

 Headquarters, Space Div., Air Force Systems Command, Dep’t 

of the Air Force, Dep’t of Def., 9 FLRA 885 (1982)(employees 

negotiated and administered contract with private corporation)

 U.S. Dep’t of Justice, Board of Immigration and Appeals, 

47 FLRA 505 (1993) (Member of the Board of Immigration and 

Appeals is management official)
Management Official

 U.S. Dep’t of Energy, Headquarters, Wash., D.C., 40 FLRA 264 

(1991)(some attorneys found to be management officials, while 

others were not)

 U.S. Dep’t of Agric., Fed. Crop Insurance Corp., Wash. Reg’l 

Office, 46 FLRA 1457, 1465-1466 (1993)(management analyst 

not a management official). 

 Nat’l Credit Union Admin., 59 FLRA 858 (2004) (examiners 

applied existing policies and regulations)

 DOD, Defense Contract Management Comm., 48 FLRA 285 

(1993)(employees applied existing policies and regulations)
Supervisor

 SSA, Office of Disability Adjudication and Review, Balt., Md., 

64 FLRA 896 (2010)(Judges were supervisors)

 Decisions involving firefighters: U.S. Dep’t of the Army, Parks 

Reserve Training Ctr., Dublin, Cal., 61 FLRA 537 (2006) and 

U.S. Dep’t of the Army, U.S. Army Garrison, Fort Lee, Va., 63 

FLRA 145 (2009) 

 VA, Wash., D.C. and VA Medical Ctr., Salisbury, N.C., 

11 FLRA 176 (1983) (head nurses were supervisors)

 U.S. Dep’t of the Army, Army Aviation Sys. Command and Army 

Troop Support Command, 36 FLRA 587, 593 (1990) (some 

engineers were supervisors, while others were not)
Supervisor

 SSA, 60 FLRA 590 (2005) (program experts assigned work 

based on evaluation of employees’ abilities and knowledge) 

 Dep’t of Interior, Bureau of Indian Affairs, Navajo Area Office,

45 FLRA 646 (1992) (employee independently evaluated 

employees’ performance and upper management used that 

information in making decisions regarding hiring, awards, etc.)

 U.S. Dep’t of Veterans Affairs, VA Medical Ctr., Allen Park, Mich., 

35 FLRA 1206 (1990)(exercise of one supervisory indicia)

 Adjutant General of Mich., Air Nat’l Guard, Battle Creek, Mich, 

11 FLRA 66 (1983)(must supervise federal employee, as defined 

by 5 U.S.C. §7103(a)(2))
CONFIDENTIAL

 U.S. Dep’t of Interior, Bureau of Reclamation Yuma Projects 

Office, Yuma, Ariz., 37 FLRA 239 (1990) (labor-nexus test) 

 U.S. Army Plant Representative Office, Mesa, Ariz., 35 FLRA 181 

(1990) (employee is not confidential in the absence of either of 

the labor-nexus test requirements) 

 U.S. Dep’t of the Army, U.S. Army Aviation Ctr., Fort Rucker, 

Ala., 60 FLRA 771 (2005) (examples of the labor-management 

relations for labor-nexus test)

 NASA, 57 FLRA 571 (2001) (secretaries were confidential 

because they attended management council meetings, and 

council members discussed and decided hiring, awards, 

promotions and grievances)
CONFIDENTIAL

 DOL, Office of the Solicitor, Arlington, Va., 37 FLRA 1371 

(1990)(attorneys had access to management’s positions on 

labor-relations matters excluded as confidential) 

 SSA, 56 FLRA 1015 (2000) (legal assistants saw information of a 

personal or sensitive nature while working on MSPB and EEOC 

cases were not excluded as confidential; EEOC and MSPB cases 

do not involve labor-management relations work for the labornexus test)
FEDERAL PERSONNEL WORK

 U.S. Dep’t of the Army, Headquarters, 101st Airborne Division, 

Fort Campbell, Ken., 36 FLRA 598, (1990)(management analysts 

conducted contracting-out studies) 

 SSA, 17 FLRA 239 (1985) (program analysts studied field office 

operations; reviewed personnel structure to determine if it was 

functioning properly)

 U.S. Department of Justice, Federal Bureau of Prisons, US 

Penitentiary, Marion, Ill., 55 FLRA 1243 (2000)(EDS made 

recommendations regarding training, scheduled training 

included in unit) 
FEDERAL PERSONNEL WORK

 U.S. Dep’t of Health and Human Serv., Office of the General 

Counsel, Balt., Md., 45 FLRA 894 (1992) (duties relating to 

personnel matters were performed within prescribed guidelines 

and regulations required little, if any, independent discretion or 

judgment). 

 SSA, 56 FLRA 1015 (2000)(legal assistant prepared case files, 

correspondence and documents did not exercise independent 

discretion or judgment). 
National Security 

 Lead case: Dep’t of Energy, Oak Ridge Operations, Oak Ridge, 

Tenn., 4 FLRA 644 (1980)

 U.S. Dep’t of the Air Force, Davis-Monthan Air Force Base, Ariz., 

62 FLRA 332 (2008) (employees used SIPRNET account to 

obtain classified information excluded from unit).

 Dep’t of Justice, Wash., D.C., 62 FLRA 286 (2007) (security 

clearance is a factor, but decision will rest on the type and 

nature of the work performed)

 U.S. Dep’t of the Treasury, IRS, 62 FLRA 298 (2007) (physical 

security specialists excluded under national security)

 U.S. Dep’t of Agriculture, Food Safety and Inspection Serv., 

61 FLRA 397 (2005)(security work did not directly affect 

national security) 
ADVISORY

 These materials have been provided by the Federal 

Labor Relations Authority. They are intended to 

supplement the discussion portion of the training 

presentation and must be understood in the context 

of that discussion. 

 While this handout will assist in understanding 

various legal issues, it does not represent legal 

advice or guidance. Also, since each case depends 

upon its own unique facts and the application of 

various legal precedent, this handout should not be 

relied upon to predict the legal outcome in any 

particular case.