FLRA's withdrawal of a union's exclusive recognition because the union no longer qualifies for such recognition, usually because it has lost a representational election. However, in 7 FLRA No. 10, the Professional Air Traffic Controllers Organization (PATCO) was decertified because it engaged in a strike.
A petition filed by employees in an existing unit (or an individual acting on their behalf) asking that an election be held to give unit employees an opportunity to end the incumbent union's exclusive recognition.
5 CFR 2422.1(a)(2).Such a petition must be accompanied by a 30% showing of interest and be timely filed (i.e., not barred by election, certification or contract bars).
In 3 FLRA No. 119 the Authority defined this right to include discretion "to supervise and guide [employees] . . . in the performance of their duties on the job." In NTEU v. FLRA, 793 F.2d 371 (DC Cir. 1986), the court held, among other things, that the right to direct did not encompass the right to reward. The right to direct, by itself, rarely is used as the basis for finding a proposal nonnegotiable. However, when combined with the right to assign work, it is the basis for finding proposals establishing performance standards nonnegotiable. See, e.g.,
49 FLRA No. 25.
DISCIPLINE. A right reserved to management under
§ 7106(a)(2)(A). The FLRA has said that the right to discipline includes the right "to investigate to determine whether discipline is justified[,]"
34 FLRA at 1156, and it "encompasses the use of the evidence obtained during the investigation." 34 FLRA at 1157. For example, a proposal requiring that complaints against an employee be in writing and identify the complainant in order to be valid excessively interferes with the right to discipline. See
47 FLRA No. 2, #27.
DISCRETION. Not all agency discretion over conditions of employment of unit employees is subject to bargaining. As the Authority noted in 55 FLRA No. 1, # 3,"[w]here law or applicable regulation vests an agency with sole and exclusive discretion over a matter, it would be contrary to law to require that discretion to be exercised through collective bargaining . . . ." For an example of a case in which FLRA found that the agency had sole and exclusive discretion, see 47 FLRA No. 84, aff'd AFGE, Local 3295 v. FLRA, 46 F.3d 73 (D.C. Cir 1/27/95). For a case where FLRA held that Congress did not intend the agency's pay setting authority to be sole and exclusive, see 50 FLRA No. 87, petition for review denied, 88 F3d 1279 (D.C. Cir 1996). The most important types of discretion reserved to management are management's § 7106(a) "management rights." However, there are several exceptions to those reserved rights, including those mentioned in § 7106(b).
DUES WITHHOLDING (CHECKOFF). § 7115. Dues withholding services provided by the agency to unions that win exclusive recognition or dues withholding recognition. If the former, the services must be provided without charge to the union. Employee dues assignments must be voluntary (no union or agency shop arrangements permitted under the Federal Service Labor-Management Relations Statute) and may not be revoked except at yearly intervals (see, e.g., 11 FLRA No. 101), but must be terminated when the agreement ceases to be applicable to the employee (as when the employee is temporarily promoted to a supervisory position or is detailed outside the unit--see, e.g., 25 FLRA No. 14) or when the employee is expelled from membership in the union. (Not all details to nonunit positions remove detailed employees from the unit. See, in this connection, 54 FLRA No. 34.) Agencies cannot use setoff to recoup erroneously withheld dues. See
31 FLRA No. 54. Under 5 CFR 550.312(a), an employee may only make an allotment if he or she "specifically designate[s] the allottee and the amount of the allotment." See 56 FLRA No. 157.
DUES WITHHOLDING RECOGNITION. § 7115(c)(1) and 5 CFR 2422.3(d). A very limited form of recognition, introduced by the statute, under which a union that can show that it has 10% of employees in an appropriate unit as members can qualify for the right only to negotiate a dues deduction arrangement. Such recognition becomes null and void as soon as a union is certified as the exclusive representative of the unit.
DURATION CLAUSE (TERM OF AGREEMENT). Clause in a collective bargaining agreement that specifies the time period during which the agreement is in effect. Where an agreement has a term greater than three years, the agreement serves as a contract bar only during the first three years. See 5 CFR 2422.12(e). An agreement can have an automatic renewal provision, in which case the bar also would be renewed. There may be separate duration clauses for different parts of the agreement. See REOPENER CLAUSE. Duration clauses may provide for automatic renewal for a specified period of time if neither party exercises its right to reopen the agreement for renegotiation during the 190-60 day open period.
DUTY OF FAIR REPRESENTATION. § 7114(a)(1): "An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." See NTEU v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986), where the court held that the union's duty of fair representation is limited to matters as to which the union is the exclusive representative. 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 . . . ." See 49 FLRA No. 71 for an example of a violation of this duty (members-only poll regarding seniority-based benefit system administered by union) and
46 FLRA No. 81 where FLRA found no violation because the nonmember employee against whom discipline was proposed had a right to have a representative of her own choice.
DUTY TO BARGAIN. Broadly conceived, it refers to both (1) the circumstances under which there is a duty to engage in bargaining (see, e.g., midterm bargaining) and (2) the negotiability of specific proposals. Disputes over the former usually are processed through the Authority's unfair labor practice procedure and frequently involve make-whole and status quo ante remedies. Disputes over the latter usually are processed through the Authority's no-fault negotiability procedure in which the Authority determines
whether proposals (or provisions disapproved by the agency head) are nonnegotiable because inconsistent with laws and regulations. In changes to 5 CFR Part 2424, effective April 1, 1999, the Authority distinguished between "bargaining disputes" and "negotiability disputes."