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Labor-Management Relations Glossary


FAIR REPRESENTATION, DUTY OF . The union's duty to represent the interests of all unit employees without regard to union membership. However, in NTEU v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986), the court held that the union's duty of fair representation is limited to matters as to which the union is the exclusive representative. (In that case, the union, which provided the services of an attorney to members in Merit Systems Protection Board (MSPB) proceedings, told an employee facing removal that the union wouldn't provide him with attorney services because he wasn't a member of the union.) The court dismissed the ULP because the right to appeal to MSPB does not arise out of the collective bargaining agreement and the employee was free to designate non-union representatives. Also see 28 FLRA No. 118, where FLRA said the following: "Where the union is acting as the exclusive representative of its unit members, we will continue to require that its activities be undertaken without discrimination and without regard to union membership under section 7114(a)(1). We will not, however, extend those statutory obligations to situations where the union is not acting as the exclusive representative."

FEDERAL LABOR RELATIONS AUTHORITY (FLRA, AUTHORITY). The independent agency responsible for administering the Federal Service Labor-Management Relations Statute (FSLMRS). As such, it decides, among other things, representation issues (e.g., the bargaining unit status of certain employees), unfair labor practices (violations of any of the provisions of the FSLMRS), negotiability disputes (i.e., scope of bargaining issues), exceptions to arbitration awards, as well as resolves disputes over consultation rights regarding agency-wide and Governmentwide regulations.

The Authority's General Counsel investigates unfair labor practice (ULP) charges and decides whether to issue and prosecute ULP complaints, and the Authority's Federal Service Impasses Panel resolves bargaining impasses. See § 7105 for a complete listing of the Authority's powers and duties and 5 CFR Parts 2422, 2423, 2424, 2425, and 2426 for its regulations.

For more information on FLRA, see its webpage at

FEDERAL MEDIATION AND CONCILIATION SERVICE (FMCS). An independent agency that provides mediators to assist the parties in negotiations. Although the bulk of its work is in the private sector, it also provides its services to the Federal sector--see § 7119(a). FMCS also maintains a roster of qualified private arbitrators, panels of which are referred to the parties upon joint request. See MEDIATION.

For more information on FMCS, see

FEDERAL SERVICE IMPASSES PANEL (FSIP or Panel). Entity within FLRA that resolves bargaining impasses, chiefly by ordering the parties to adopt certain contractual provisions relating to the conditions of employment of unit employees. It was created as a strike-substitute (strikes are prohibited in the Federal sector--see 7 FLRA No. 10, where the Authority decertified the Professional Air Traffic Controllers Organization (PATCO) because it had engaged in a strike) or other economic tests of strength that frequently determine bargaining outcomes in the private sector. The Panel uses many procedures for resolving impasses, including factfinding, med-arb, final-offer interest arbitration, either by the Panel, individual members of the Panel, the Panel's staff, or by ordering the parties to refer their impasse to an agreed-upon private arbitrator who is to provide interest-arbitration services. Under section 7119(c)(5)(B)(iii), FSIP may "take whatever action is necessary and not inconsistent with this chapter to resolve the impasse." For example, if the parties can't agree on particular provision(s)--i.e., contractually determined conditions of employment, FSIP has authority to tell them what to put (or not put) in their contract. However, it is not a ULP to refuse to comply with a FSIP order dealing with a permissive subject of bargaining. See 15 FLRA Nos. 65 and 100 - 104. See 5 CFR 1470 ff for FSIP's regulations.

For more information on FSIP, see

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (FSLMRS). 5 U.S.C. § § 7101 - 7135. The basis of the labor-management relations program for most non-postal Federal employees. See AGENCY and EMPLOYEE, above. The statute can be downloaded from:

FINAL-OFFER INTEREST ARBITRATION. A technique for resolving bargaining impasses in which the arbitrator is forced to choose among the final positions of the parties--rather than order adoption of some intermediate position (i.e., "split the difference"). It can apply to individual items or "packages" of items. The theory is that each party, expecting that the interest arbitrator will pick the most reasonable of the two final offers, will have an incentive to move closer to the position of the other party in order to increase the odds that the arbitrator will select its final offer as the more reasonable of the two. This in turn narrows the gap between the parties: if the gap is narrow enough it can be bridged by the parties themselves (by, e.g., splitting the difference).

FORMAL DISCUSSION. Under § 7114(a)(2)(A), the exclusive representative must be given an opportunity to be represented at "any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment[.]"(Italics added.) For a discussion and application of the four elements of "formal discussion," see 15 FLRA No. 87. For some of the factors FLRA considers in determining the "formality" of a meeting, see 10 FLRA No. 24. For other examples of formal discussion unfair labor practices, see 5 FLRA No. 58 (employee orientation sessions are formal discussions), 21 FLRA No. 96 (the right to be represented includes the right to "comment, speak and make [nondisruptive] statements"), and 41 FLRA No. 106 (telecon interviews of potential witnesses by agency attorney preparing for an MSPB hearing are formal discussions).

FREE SPEECH. Under § 7116(e), the expression of personal views or opinions, even if critical of the union, is not an unfair labor practice if such expression is not made in the context of a representational election and if it "contains no threat of reprisal or force or promise of benefit or was not made under coercive conditions." During the conduct of an election, however, management officials must be neutral. See, e.g., 14 FLRA No. 42, 9 FLRA No. 69, and 6 FLRA No. 32.

This limited right of free speech applies to agency representatives (see 9 FLRA No. 36). It should be distinguished from employee rights under § 7102. Under § 7102 employees have the protected right to "form, join, or assist any labor organization" or refrain from such activity and are therefore under no obligation to be neutral but can openly express their views, pro or con, regarding the unions seeking or holding exclusive recognition.

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