Labor Management Relations Glossary

Bargaining Agent

The union holding exclusive recognition for an appropriate unit (external link).

Bargaining Impasse (impasse)

When the parties have reached a deadlock in negotiations they are said to have reached an impasse in negotiations.* The statute provides for assistance by Federal Mediation and Conciliation Service(FMCS) mediators and the Federal Service Impasses Panel(FSIP) to help the parties settle impasses. If nothing avails, the FSIP can resolve the impasse by telling the parties what they are to put in their agreement or by ordering the use of interest arbitration by an agreed-upon private arbitrator. See § 7119. It is not, however, 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.

*Note: If the parties reach a bargaining impasse and the union timely invokes the services of the Impasses Panel, the agency must maintain the status quo to the maximum extent possible, consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action it deems appropriate. 18 FLRA No. 61. Failure to do so is an unfair labor practice and may result in a "make-whole" and/or status quo ante remedy. Regarding the "necessary functioning of the agency" exception to the duty to maintain the status quo, in 51 FLRA No.69, the Authority said that when an agency relies upon this exception and alters the status quo, it must be prepared to provide affirmative support for the assertion that the action taken was consistent with the necessary functioning of the agency. The Authority has also indicated that the phrase "consistent with the necessary functioning of the Agency," may be accurately paraphrased as "necessary for the [agency] to perform its mission." See 23 FLRA No. 10. Also see 16 F Nos. 31 and 32 on acting after bargaining to impasse and giving notice.

Bargaining Unit

See Appropriate Unit (external link).

Bargaining Unit Structure

The distribution of bargaining units by, e.g., size and location. It is often said that the bargaining unit structure in the Federal sector is "fragmented." Two additional appropriate unit criteria--effective dealings and efficiency of government operations--were among the changes Executive Order (EO) 11491 made over EO 10988 in order to combat the problem of fragmentation. EO 11491 was later amended to provide for unit consolidation procedures as another means of coping with unit fragmentation. See unit consolidation (external link).

Bep Test

A 2-prong test, articulated in Bureau of Engraving and Printing, 53 FLRA No. 21, that FLRA applies to arbitration awards that affect management's section 7106 rights to determine whether the award nonetheless is enforceable. Under the first prong, the Authority asks if the award provides a remedy for a violation of either an "applicable law" (see APPLICABLE LAWS) or a section 7106(b) (exceptions to management's rights) contract provision. If so, it then considers, under the second prong of the BEP test, whether the remedy constitutes a reconstruction of what management would have done had it not violated the applicable law or section 7106(b) contract provision.

Binding Arbitration

Under § 7121(b)(2)(A), a requirement that arbitration of grievances be binding (as opposed to advisory--which was permitted under Executive Order 11491).

Budget

A core right reserved to management by § 7106(a)(1). In 2 FLRA No. 77, #I, the Authority fashioned a two-prong test that it has since used to determine whether a proposal interferes with an agency's right to determine its budget: namely, the proposal either has to prescribe particular programs, operations or amounts to be included in an agency's budget, or the agency can substantially demonstrate that the proposal would result in significant and unavoidable cost increases that are not offset by compensating benefits. Regarding the first part of its budget test, FLRA said the following in 48 FLRA No. 128:

We find that the first part of the budget test encompasses the specific process that is dedicated to formulating: (1) the budget estimate for an agency that is incorporated in the budget of the United States Government; (2) estimates for funding the operations and programs of an agency that are produced within the agency to provide the groundwork for the budget estimate that is incorporated in the budget of the United States Government; and (3) an agency's plan for allocating funds among its operations and programs once presidential and congressional action on the budget of the United States Government has occurred. Thus, the first part of the budget test removes from bargaining any mandated inclusion of programs, operations, and amounts in the estimates and plans that comprise an agency's budget process. As a practical matter, the first part of the test includes the prescription of the "line items" that will be contained in the budget estimates that are incorporated in the budget of the United States. It also encompasses the prescription of the items and amounts that will be included in the funding estimates and plans that are developed by the agency in conjunction with formulating and executing the budget of the United States.

Regarding the second part, in 47 FLRA No. 95 the Authority said that it would no longer consider nonmonetary intangible benefits when applying the cost/benefit balancing test. Also, in determining whether a cost is "significant," FLRA views the projected increase in costs in relation to the agency's budget. For example, in 49 FLRA No. 89, #4, involving a commuter subsidy proposal, FLRA concluded that a projected cost of $3.628 million would not constitute a significant increase in costs because such a cost represented less than 1 per cent of the agency's budget. Compare this with 47 FLRA No. 95, involving a salary adjustment proposal, where FLRA concluded that the projected cost increase of the proposal was significant because it would constitute 12 per cent of the agency's appropriated budget.

Bypass

Dealing directly with employees rather than with the exclusive representative regarding negotiable conditions of employment of bargaining unit employees. A bypass is an unfair labor practice prohibited by section 7116(a)(5). It is not, however, a bypass to solicit information that would assist management in making a nonnegotiable determination. See, e.g., 10 FLRA No. 24, 19 FLRA No. 48, and 19 FLRA No. 56.

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 (external link)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 election bar.

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 (external link), supervisor (external link), confidential employee (external link) 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 (external link) agents will rule on each challenged ballot to see whether it should be counted.

Checkoff

See DUES WITHHOLDING (external link).

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 (external link) 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

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 representationthat 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 (external link).

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.

Back to Top