ELECTION AGREEMENT. Agreement entered into by the agency and the union(s) competing for exclusive recognition dealing with campaign procedures, election observers, date and hours of election, challenge ballot procedures, mail balloting (if used), position on the ballot, payroll period for voter eligibility, and the like. Such an agreement is subject to approval by the appropriate FLRA Regional Director. See
5 CFR 2421.20.
ELECTION BAR. One-year period after FLRA has conducted a secret-ballot election for a unit of employees, where the election did not lead to the certification of a union as exclusive representative. During this one-year period FLRA will not consider any representation petitions for that unit or any subdivisions thereof. § 7111(b) and 5 CFR 2422.12(a). See certification bar and contract bar.
EMPLOYEE. Under the Federal Service Labor-Management Relations Statute, the term "employee" includes an individual "employed in an agency" or "whose employment in an agency has ceased because of any unfair labor practice," but does not include supervisors and management officials or anyone who participates in a strike or members of the uniformed services or employees in the Foreign Service (who have a separate labor-management relations program--see
22 USC 4101 ff) or aliens occupying positions outside the U.S. See
5 USC § 7103(a)(2).
EQUIVALENT STATUS. Status given a union challenging the incumbent union that entitles it to roughly equivalent access during the period preceding an election to facilities and services (bulletin boards, internal mail services, etc.) as that enjoyed by the incumbent union. At one time the FLRA adopted a per se rule under which it would find an activity guilty of illegal assistance to a labor organization (see § 7116(a)(3)) if it gave the raiding union access to such facilities and services before FLRA notifies the activity that the raider has equivalent status. "[A] petitioning union acquires equivalent status . . . when an appropriate Regional Director determines, and notifies the parties, that the petition includes a prima facie showing of interest and merits further processing." See 44 FLRA No. 36. However, because of Constitutional difficulties, in
52 FLRA No. 114 the Authority replaced the per se rule with a "totality of circumstances" approach.
EXCEPTIONS TO ARBITRATION AWARDS. A claim that an arbitration award is deficient "on . . . grounds similar to those applied by Federal courts in private sector labor-management relations," or because it violates law, rule or regulation. § 7122(a). Some of the "grounds similar to those applied by Federal courts" are: the award doesn't draw its essence from the agreement, the award is based on a nonfact, the arbitrator didn't conduct a fair hearing, or the arbitrator exceeded his authority. Exceptions involving the latter are claims that the award violates some law or regulation. FLRA's rulings on exceptions to arbitration awards are not normally subject to court review if the arbitration award doesn't involve resolution of an unfair labor practice processed under the negotiated grievance procedure. NTEU v. FLRA, 824 F.2d 61 (D.C. Cir. 1987). In 53 FLRA No. 152, the Authority said that it would remand those portions of arbitration awards "that are challenged by . . . exceptions and that fail to contain the factual findings necessary to determine whether the arbitrator's legal conclusions are consistent with the applicable standard of law." The Authority has no jurisdiction to consider exceptions to awards involving major adverse or performance-based actions. See, e.g.,
55 FLRA Nos. 130 and
50. Compare with
49 FLRA No. 90 involving an award dealing with an unsatisfactory rating (but not a performance-based action).
EXCESSIVE INTERFERENCE. A balancing test that the FLRA applies to proposals that are arrangements for employees adversely affected by the exercise of management's rights in order to determine whether they are negotiable appropriate arrangements within the meaning of § 7106(b)(3). The test involves balancing the extent to which the proposal ameliorates anticipated adverse effects against the extent to which it places restrictions on the exercise of management's rights. Compare with ABROGATION TEST.
EXCLUSIVE RECOGNITION. Under the Federal Service Labor-Management Relations Statute, 5 USC §§ 7101 ff, exclusive recognition is normally obtained by a union as a result of receiving a majority of votes cast in a representational election. (Exclusive recognitions obtained under Executive Order 10988, which didn't require secret-ballot elections, are preserved via a "grandfather" clause.)
The rights a union is accorded as a result of being certified as the exclusive representative of the employees in a bargaining unit include, among other things, the right to negotiate bargainable aspects of the conditions of employment of bargaining unit employees, to be afforded an opportunity to be present at formal discussions, to free checkoff arrangements and, at the request of the employee, to be present at Weingarten examinations of unit employees.
EXCLUSIVE REPRESENTATIVE. ("of employees in an appropriate unit"--see § 7103(a)(16)). The union that is certified as the exclusive representative of a unit of employees either by virtue of having won a representation election or because it had been recognized as the exclusive representative before passage of the CSRA. It is an unfair labor practice for an agency to deal with other unions or organizations or special interest groups (or, for that matter, directly with unit employees--see
BYPASS and FORMAL DISCUSSION) regarding the conditions of employment of unit employees. See EXCLUSIVE RECOGNITION. A union holding exclusive recognition is sometimes referred to as the exclusive bargaining agent of the unit.
EXECUTIVE ORDER 12871, as amended. This order, signed October 1, 1993 and reaffirmed six years later in a Presidential Memorandum, was revoked on February 17, 2001 by Executive Order 13203. EO 12871 had established, among other things, a National Partnership Council (NPC) that was made up of representatives of labor, agency, and managerial/supervisory organizations. The mission of the NPC was to advise the President on labor-management relations, support and foster labor-management partnerships, and collect and disseminate information on partnerships. EO 12871 also directed agencies to establish partnerships, provide training in alternative dispute resolution techniques, bargain on section 7106(b)(1) matters, and "evaluate progress and improvements in organizational performance resulting from the labor-management partnerships."
In 54 FLRA No. 43, where the Authority dismissed a ULP complaint involving an agency's refusal to bargain on section
7106(b)(1) matters, the Authority held that the EO 12871 directive to bargain on section 7106(b)(1) matters was not an "election" within the meaning of section 7106(b)(1). "Questions concerning the Respondent's compliance with the Executive Order," said FLRA, "are properly resolved as a matter involving the internal management of the Executive branch." The D.C. and 9th Circuits have affirmed the Authority's reasoning and conclusions.
EXECUTIVE ORDER 13203. EO 13203, signed February 17, 2001, revoked EO 12871 (as well as the Presidential Memorandum of October 28, 1999 that had reaffirmed EO 12871), dissolved the National Partnership Council, and ordered the Director of OPM and heads of executive agencies to promptly rescind "any orders, rules, regulations, guidelines, or policies implementing or enforcing" EO 12871 or the Presidential Memorandum "to the extent consistent with law." It also provided that nothing in the order abrogated "any collective bargaining agreements in effect on the date of this order."
EXTERNAL LIMITATIONS ON THE EXERCISE OF MANAGEMENT'S RIGHTS. The types of discretion reserved to management by
§ 7106 are not unfettered. Quite apart from any limitations that may be found in the collective bargaining agreement (such as an appropriate arrangement provision), its discretion must also be exercised in accordance with the laws and regulations that set limitations on management discretion (for example, OPM's reduction-in-force regulations,
5 CFR 351). Only those external limitations on the exercise of
§ 7106(a)(2) rights can be enforced by the union under the negotiated grievance procedure. See APPLICABLE LAWS.