CARVEOUT. An attempt, usually unsuccessful
under the Federal Service Labor-Management Relations Statute because it fosters unit fragmentation, to carve out (or sever)--usually along occupational lines (firefighters, nurses)--a subgroup of employees in an existing bargaining unit in order to establish a separate, more homogenous unit with a different union as exclusive representative. See
16 FLRA No. 67.
CERTIFICATION. FLRA's determination of the results of an election or the status of a union as the exclusive representative of all the employees in an appropriate unit.
CERTIFICATION BAR. One-year period after a union is certified as the exclusive representative for a unit during which petitions by rival unions or employees seeking to replace or remove the incumbent union will be considered untimely § 7111(f)(4) and .
5 CFR 2422.12(b). The bar is designed to give the certified union an opportunity to negotiate a substantive agreement, after which the contract can become a bar, except during the contract's 105-60 day open period, to a representation petition. Also see contract bar and
CHALLENGED BALLOTS. Ballots that are challenged by election observers on the ground that the person casting the ballot isn't eligible to vote because, e.g., he or she is a management official,
confidential employee or engaged in personnel work.Challenged ballots usually are kept separate and if, after tallying the uncontested ballots, it is determined that there are enough challenged ballots to affect the outcome of the election, the Authority's agents will rule on each challenged ballot to see whether it should be counted.
CHECKOFF. See DUES WITHHOLDING.
CHIEF STEWARD. A union official who assists and guides shop stewards. The roles he or she plays within the union are determined by the union. The roles he or she plays in administering the contract are determined by the contract. For example, the negotiated grievance procedure may provide that the chief steward becomes the union representative if the grievance reaches a certain step in the grievance procedure.
CIVIL SERVICE REFORM ACT OF 1978 (CSRA). Legislation enacted in October 1978 for the purpose of improving the civil service.It includes the Federal Service Labor-Management Relations Statute (FSLMRS),
Chapter 71 of title 5 of the U. S. Code.
CLARIFICATION OF UNIT PETITION. That portion of FLRA's multipurpose petition not involving a question concerning representation that may be filed at any time in which the petitioner (union or management) asks FLRA to determine the bargaining unit status of various employees--i.e., to determine whether they are management officials, supervisors, employees engaged in nonclerical personnel work, or confidential employees, and therefore excluded from the unit (and from the coverage of the collective bargaining agreement applicable to the unit, including access to the agreement's negotiated grievance procedure).
5 CFR 2422.1(b).; Arbitrators may not determine the bargaining unit status of an employee in order, e.g., to determine whether a grievance by a particular employee is arbitrable under the negotiated grievance procedure. See, e.g.,
32 FLRA No. 125. In
56 FLRA No. 153, as the result of the 9th Circuit's decision in Eisinger v. FLRA, 218 F.3rd 1097 (9th Cir. 2000), FLRA vacated its decision in
54 FLRA No. 58 (where it held that individuals did not have standing to file CU or AC petitions).
CLASSIFICATION ACT EMPLOYEES. Federal employees--typically professional, administrative, technical, and clerical employees (i.e., "white collar" employees)--sometimes referred to as "General Schedule" employees, to distinguish them from Federal Wage System (blue collar, Wage Grade) employees.
COLLECTIVE BARGAINING. Literally, bargaining between and/or among representatives of collectivities (thus involving internal as well as external bargaining); but by custom the expression refers to bargaining between labor organizations and employers. See
§ 7103(a)(12) for a statutory definition.
COLLECTIVE BARGAINING AGREEMENT (CBA). See AGREEMENT, NEGOTIATED.
COMPELLING NEED. A requirement, under
§ 7117(b), that a discretionary agency regulation that doesn't involve the exercise of
§ 7106 management rights must meet in order to be a valid limitation on the scope of bargaining. There are three "illustrative criteria" of compelling need: (1) the regulation is essential to the effective and efficient accomplishment of the mission of the agency, (2) the regulation is necessary to insure the maintenance of basic merit principles, and (3) the regulation implements a mandate of law or other authority (e.g., a regulation) in an essentially nondiscretionary manner.
5 CFR 2424.50. Compelling need determinations may not be made by the Federal Labor Relations Authority in an unfair labor practice proceeding. FLRA v. Aberdeen Proving Ground, 108 S.Ct. 1261 (1988). FLRA rarely finds a compelling need for agency regulations that impose requirements beyond those already established by laws or Governmentwide regulations.
CONCILIATION. See MEDIATION.
CONDITIONS OF EMPLOYMENT (COE).
Under § 7103(a)(14), COE "means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise [e.g., by custom or practice], affecting working conditions, except that such term does not include policies, practices, and matters--(A) relating to political activities prohibited under subchapter III of chapter 73 of this title; (B) relating to the classification of any positions; or (C) to the extent such matters are specifically provided for by Federal statute[.]" (Emphasis added.) The fact that a statute deals with a matter doesn't mean that everything related to that matter isn't a condition of employment. In
55 FLRA No. 18, the Authority said the following: "The appropriate inquiry . . . is whether a statute at issue provides the Agency with the discretion to agree to the proposal." To the extent an agency has discretion in implementing the law, that discretion would be subject to bargaining.
The duty to bargain is limited to the mandatorily negotiable conditions of employment of bargaining unit employees. In FLRA's words: "[M]atters concerning conditions of employment are subject to collective bargaining when they are within the discretion of an agency and are not otherwise inconsistent with law or applicable rule or regulation."
53 FLRA 625,
21 FLRA 61, 10-11. Unilateral changes in COE are unfair labor practices. For examples of what doesn't constitute a COE, see:
3 FLRA No. 8 (appeal system for military appraisals),
7 FLRA No. 18 (hunting and fishing on military reservation),
8 FLRA No. 75, #1 (management access to investigatory files),
11 FLRA No. 99 (classification of positions), and
13 FLRA No. 73 (recycling discarded paper).
CONFIDENTIAL EMPLOYEE. Under
§ 7103(a)(14), "an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations[.]"(Emphasis added.) Under
§ 7112(b)(2), confidential employees must be excluded from bargaining units. Disputes over whether an employee is a confidential employee are resolved by FLRA, usually via a
5 CFR 2422.1(b) petition. Examples:
31 FLRA No. 6,
33 FLRA No. 30,
37 FLRA No. 16,
37 FLRA No. 112,
47 FLRA No. 48, and
50 FLRA No. 21.
CONSULTATION. To be distinguished from negotiation. The FSLMRS provides for two types of consultation: between qualifying unions and agencies concerning agency-wide regulations
(§ 7113, National consultation rights) and qualifying unions and those agencies issuing Governmentwide regulations
The incumbent union is protected from challenge by a rival union if there is an agreement in effect having a term of not more than three years, except during the agreement's "open period"--i.e., 105 to 60 days prior to the expiration of the agreement. See
§ 7111(f)(3) and
5 CFR 2422.12 (d) and (e) regarding contracts of 3 years or less or contracts of more than 3 years, respectively. Compare with election bar and certification bar.
CONTRACTING OUT. A right reserved to management by
§ 7106(a)(2)(B). It includes the right to determine the criteria governing the exercise of the right. For example, a proposal permitting contracting out only if the agency can demonstrate that contracting out would be "economically efficient, effective to the mission, or in the best interest of the Federal Government" directly interferes with the right to contract out.
45 FLRA No. 122. Similarly, prohibiting the contracting out of a function that had undergone a RIF for a year after the effective date of the RIF interferes with the right to contract out.
49 FLRA No. 84, #10.
Attempts to enforce the contracting-out requirements of Office of Management and the Budget (OMB) Circular A-76 through the negotiated grievance procedure have been found to be prohibited by the Circular, a Governmentwide regulation, in IRS v. FLRA, 996 F.2d 1246 (D.C. Cir. 1993),
48 FLRA No. 15 (#17),
52 FLRA No. 70, and
52 FLRA No. 125.
"COVERED BY" DOCTRINE. A doctrine under which an agency does not have to engage in midterm bargaining on particular matters because those matters are already "covered by" the existing agreement.
At one time FLRA adopted a "clear and unmistakable" test in determining whether a matter was "covered by" the contract--see, e.g.,
39 FLRA No. 91. However, that test was criticized by the D.C. Circuit in Marine Corps v. FLRA, 962 F.2d 48 (1992) on the ground it nullified the terms of agreements and required endless bargaining. The Authority consequently adopted a three-prong test to determine whether there is no need to bargain on a particular subject because it already is covered by the existing agreement in
47 FLRA No. 96. Under the first prong it asks whether the express language of the contract "reasonably encompasses the subject in dispute." See, e.g.,
47 FLRA No. 116,
48 FLRA No. 89, and
49 FLRA No. 1. Under the second prong (which comes into play only if the express language doesn't encompass the matter), it asks whether the subject in dispute is "inseparably bound up with" and thus an "aspect" of a subject expressly covered by the contract. See, e.g.,
48 FLRA No. 10,
49 FLRA No. 130, and
51 FLRA No. 103. In
52 FLRA No. 2, the Authority said that "the third prong applies in cases where it is difficult to determine whether the subject matter sought to be bargained is an aspect of matters already negotiated. In such cases, the Authority will give controlling weight to the parties' intent." It went on to say that "[i]n making these determinations, the Authority will, 'examine all record evidence[,]' including the parties, bargaining history and prior agreements, to determine whether 'the parties reasonably should have contemplated that the agreement would foreclose further bargaining in such instances.'" In
56 FLRA No. 136 it emphasized that the third prong was not a separate, independent criterion, but rather "an integral component of that part of the 'covered by' analysis to determine whether the matter sought to be bargained is inseparably bound up with and thus is plainly an aspect of a subject covered by the contract."