SCOPE OF BARGAINING. Matters about which the parties can negotiate. See
SELECT (WITH RESPECT TO FILLING POSITIONS).
A right reserved to management by § 7106(a)(2)(C) to make selections for appointments from any appropriate source. The right to select includes discretion to determine what knowledges, skills and abilities are necessary for successful performance in the position to be filled, as well as to determine which candidates possess these qualifications. Consequently, a proposal requiring management to fill vacancies in a RIF situation only with affected employees who meet minimum18 standards excessively interferes with the right to select.
23 FLRA No. l, #1.
FLRA has held that a career-ladder promotion isn't a "selection for appointment" under
11 FLRA No. 58, #2. Such a promotion is, instead, "merely . . . a ministerial act implementing the Agency's earlier decision made pursuant to its discretion under section
7106(a)(2)(C) to select and place the employee involved in a career ladder position, with the intention of preparing the employee for successive noncompetitive promotions when [certain conditions are met]."
8 FLRA No. 97. Thus, FLRA has found proposals requiring that such promotions be made as soon as employees have demonstrated the ability to perform at the higher level and have met time-in-grade requirements to be negotiable (or, more commonly, it has sustained arbitration awards enforcing career-ladder promotion provisions). Proposals requiring management to create career-ladder positions, on the other hand, excessively interfere with the agency's right to determine its
25 FLRA No. 21, #11.
Proposals requiring that unit positions be filled only via competitive procedures affect the right to select. See, in this connection, 56 FLRA No. 185, where FLRA said that such a disapproved provision did not "preserve management's right to ultimately select from a different source, including noncompetitive reassignment."
The right to establish and abolish shifts is a
7106(b)(1) staffing patterns right. See
16 FLRA No. 1. Assigning employees to shifts is a
7106(a)(2)(A) right to assign employees.
See 30 FLRA No. 80, #1 (assignment to shifts), referred to under
ASSIGN EMPLOYEES. But see
55 FLRA No. 192, where the Authority said that it "has consistently held that proposals or provisions that prescribe the manner [e.g., assign on the basis of seniority] in which equally qualified employees will be assigned to shifts constitute procedures under section
7106(b)(2). . . ."
SHOWING OF INTEREST (SOI).
The required evidence of employee interest supporting a representation petition. The SOI for a petition seeking exclusive recognition is 30%
(5 CFR 2422.3(c)); 10% to intervene in the election
(5 CFR 2422.8(c)(1); and 10% when petitioning for dues allotment recognition
(5 CFR 2422.3(d)). Evidence of such a showing can consist of, e.g., signed and dated authorization cards or petitions.
A short-hand expression used to refer to
§ 7106(b)(1)'s long-winded reference to "the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty[.]" Under the statute, agencies can elect not to bargain on such matters. Although EO 12871 had directed agencies to bargain on (b)(1) matters, that order was revoked by EO 13203.
§ 7106(a)(1)'s reference to number of employees of an agency and
§ 7106(b)(1)'sreference to "numbers . . . of employees . . . assigned to any agency subdivision, work project, or tour of duty." (Emphasis added.) The former refers to the size of the agency's workforce; the latter to the allocation of that workforce among agency subdivisions, etc. Keep in mind that
§ 7106(b)(1) is an exception to
§ 7106(a), including
§ 7106(a)(1). Consequently a staffing patterns proposal affecting the numbers of employees of an agency would still be, under the statute, an electively negotiable matter.
STANDARDS OF CONDUCT FOR LABOR ORGANIZATIONS.
Standards regarding internal democratic practices, fiscal responsibility, and procedures to which a union must adhere to qualify for recognition. The Department of Labor has responsibility for making known and enforcing standards of conduct for unions in the Federal and private sectors. See
53 FLRA No. 85.
Union representative to whom the union assigns various representational functions, such as investigating and processing grievances and representing the union at various meetings, such as
formal discussions and
Where, as the result of a reorganization, a portion of an existing unit is transferred to a gaining employer, the latter will be found to be the successor employer (thus inheriting, along with the employees, the exclusive representative of those employees and the collective bargaining agreement that applied to those employees) if: (a) the post-transfer unit is appropriate, (b) the transferred bargaining unit employees are a majority in the post-transfer unit, (c) the gaining employer has "substantially" the same mission as the losing employer, (d) the transferred employees perform "substantially" the same duties under "substantially" similar working conditions in the gaining entity, and (e) it is not demonstrated that an election is necessary to determine representation. See Port Hueneme,
50 FLRA No. 56, discussed in Significant Cases No. 107.
In 56 FLRA No. 47, reported in Significant Cases No. 135, the Authority indicated that where there are competing claims of successorship, it would first evaluate proposed units that most fully preserve the status quo regarding the bargaining structure and the employees' relationship to its chosen exclusive representative. It also indicated that a change in chain of command, by itself, doesn't render a unit inappropriate. Compare with ACCRETION.
Under § 7103(a)(10), a supervisor is "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[.]" In 45 FLRA No. 57 the Authority also held that a person exercising independent judgment in preparing performance appraisals is a supervisor.
The individual need exercise only one of the indicia of supervisory authority, not a majority of them, to qualify as a supervisor under the FSLMRS, provided it involves the consistent exercise of independent judgment. See, e.g.,
35 FLRA No. 137. Moreover, it is sufficient if that individual exercises supervisory authority over a single employee (rather than three employees as required by classification requirements). Job titles are not determinative, as FLRA bases its determinations on what the individuals do, not on what the positions they occupy are called or how they are classified. For example, sometimes team leaders are found to be supervisors, and sometimes they are not, depending on what they actually do. See, e.g., 8 FLRA No. 10 (where 2 of 15 team leaders were found to be supervisors),
11 FLRA No. 37 (where FLRA found 6 team leaders to be supervisors), and SSA and AFGE, Case No. WA-RP-60063, February 26, 1997 (where a Regional Director with FLRA found that 49 team leaders in 10 regions were both supervisors and confidential employees).
Although supervisors can join unions and vote in union elections, they may not represent the union in its dealings with management. See court case quoted under MANAGEMENT OFFICIAL.