LABOR-MANAGEMENT RELATIONS

1. Section 1. Purpose
2. Section 2. General Provisions
3. Section 3. Rights and Duties of Labor Organizations and Management
4. Section 4. Grievances, Appeals and Review
5. Section 5. Administrative and Other Provisions
6. Section 6. Effect on Other Orders

SECTION 1. PURPOSE.

.01 This Order sets forth the policy and procedure applicable to labor-management relations in the Department of Commerce.

.02 This revision of the Order is issued to conform the labor-management relations policy of the Department of Commerce to Title VII of the Civil Service Reform Act of 1978 (Chapter 71 of Title 5, U.S.C.).

SECTION 2. GENERAL PROVISIONS.

.01 Policy. Each employee shall have the right to form, join, or assist any labor organization, or to refrain from such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this Order, such right includes the right to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies, and other officials of the executive branch of the Government, the Congress or other appropriate authorities, and the right to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees. This paragraph does not authorize participation in the management of a labor organization or acting as a supervisor, or a confidential employee, except as specifically provided for in this Order, or by an employee if the participation or activity would result in a conflict or apparent conflict of interest or would otherwise be incompatible with law or with the official duties of the employee.

.02 Definitions. For purpose of this Order, the terms used have the meanings indicated:

a. “Department” means the Department of Commerce as a whole, and in relation to a labor organization, “Department” means any official or organization unit of the Department acting on behalf of the Department.

b. “Operating unit” means an operating unit of the Department as defined in Department Organization Orders, and in addition, the Offices of the Secretary of Commerce, the Offices of Secretarial Officers, and Departmental Offices, as defined in Department Organization Order 1-1. References to the head of an operating unit shall include any official designated by the head of an operating unit to carry out the purposes of this Order.

c. "Department policies and regulations" means not only policies and regulations issued by the Office of the Secretary but also policies and regulations issued by operating units and by organizational components of operating units.

d. "Director of Personnel" means the Director, Office of Personnel, Department of Commerce.

e. "Person" means an individual, labor organization or the Department.

f. "Employee" means an individual employed by the Department or one whose employment has ceased because of any unfair labor practice under paragraph 3.07 of this Order and who has not obtained any other regular and substantially equivalent employment, as determined under regulations prescribed by the Federal Labor Relations Authority; but does not include an alien or noncitizen of the United States who occupies a position outside the United States, NOAA commissioned officers, midshipmen of the Merchant Marine Academy, a supervisor or management official, a confidential employee, or any person who participates in a strike in violation of 5 U.S.C. 7311.

g. "Labor organization" means an organization composed in whole or in part of employees, in which employees participate and pay dues, and which has as a purpose the dealing with the Department concerning grievances and conditions of employment, but does not include:

1. An organization which, by its constitution, by laws, tacit agreement among its members, or otherwise, denies membership because of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status, political affiliation, marital status, or handicapping condition;

2. An organization which advocates the overthrow of the constitutional form of government of the United States;

3. An organization sponsored by the Department; or

4. An organization which participates in the conduct of a strike against the Government or any agency thereof or imposes a duty or obligation to conduct, assist, or participate in such a strike.

h. "Dues" means dues, fees, and assessments.

i. "Authority" means the Federal Labor Relations Authority.

j. "Panel" means the Federal Service Impasses Panel.

k. "Collective bargaining agreement" means an agreement entered into as a result of collective bargaining.

l. "Grievance" means any complaint:

1. By an employee concerning any matter relating to the employment of the employee;

2. By any labor organization concerning any matter relating to the employment of one or more employee; or

3. By any employee, labor organization, or agency concerning the effect or interpretation, or a claim of breach , of a collective bargaining agreement; or any claimed violation of any law , rule, or regulation affecting conditions of employment.

m. "Supervisor" means an individual employed by the Department having authority in the interest of the Department to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or effectively to recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgement, except that, with respect to any unit which includes firefighters or nurses, the term "supervisor" includes only those individuals who devote a preponderence of the employment time to exercising such authority.

n. "Management official " means an individual employed by the Department in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency.

o. "Collective bargaining" means the performance of the mutual obligation of a representative of the Department and the exclusive representative of employees in an appropriate unit in the Department to meet at reasonable times and to consult and bargain in a good faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to does not compel either party to agree to a proposal or to make a concession.

p. "Confidential employee" means 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.

q. "Conditions of employment" means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters:

1. Relating to political activities prohibited under 5 U.S.C. 7321.

2. Relating to the classification of any position; or

3. To the extent such matters are specifically provided for by Federal statute.

r. "Professional employee" means an employee engaged in the performance of work:

1. Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital (as distinguished from knowledge acquired by a general academic education), or from an apprenticeship, or from training in the performance of routine mental, manual, mechanical, or physical activities;

2. Requiring the consistent exercise of discretion and judgement in its performance;

3. Which is predominantly intellectual and varied in character (as distinguished from routine mental, manual, mechanical, or physical work); and

4. Which is of such character that the output produced or the result accomplished by such work cannot be standardized in relation to a given period of time. "Professional employee" also means an employee who has completed the courses of specialized intellectual instruction and study described above and is performing related work under appropriate direction or guidance to qualify the employee as a professional employee as described above.

s. "Exclusive representative" means any labor organization which:

1. Is certified as the exclusive representative of employees in an appropriate unit pursuant to paragraph 3.03 of this Order; or

2. Was recognized by the Department under the provisions of Executive Orders 10988 or 11491, as amended, immediately before the effective date of Chapter 71 of Title 5 U.S.C. as the exclusive representative of employees in an appropriate unit on the basis of an election or on any basis other than an election, and continues to be so recognized in accordance with the provisions of this Order.

t. "Firefighter" means any employee engaged in the performance of work directly related to the control and extinguishing of fires or the maintenance and use of firefighting apparatus and equipment.

u. "United States" means the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, the Trust Territories of the Pacific Islands, and any territory or possession of the United States.

.03 Management Rights.

a. Subject to subparagraph .03b., below, nothing in this Order shall affect the authority of any management official of the Department:

1. To determine the mission, budget, organization, number of employees, and internal security practices of the Department; and

2. In accordance with applicable laws:

(a) to hire, assign, direct, layoff, and retain employees in the Department, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

(b) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which Departmental operations shall be conducted;

(c) with respect to filling positions, to make selections for appointments from among properly ranked and certified candidates for promotion; or any other appropriate source; and

(d) to take whatever actions may be necessary to carry out the mission of the Department during emergencies.

b. Nothing in this paragraph shall preclude the Department and any labor organization from negotiating:

1. At the election of the Department, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;

2. Procedures which management officials of the Department will observe in exercising any authority under this paragraph; or

3. Appropriate arrangements for employees adversely affected by the exercise of any authority under this paragraph by such management officials.

SECTION 3. RIGHTS AND DUTIES OF LABOR ORGANIZATIONS AND MANAGEMENT.

.01 Exclusive Recognition of Labor Organization. Each operating unit of the Department, through an authorized appointing officer (see Department Administrative Order 202-250, Appendix A), or, in the case of national exclusive, the Director of Personnel, will accord exclusive recognition to a labor organization that has been selected as the representative, in a secret ballot election, by the majority of the employees in an appropriate unit who cast ballots in the election. A labor organization seeking exclusive recognition shall submit to the Director of Personnel or to an authorized appointing officer for the operating unit concerned, as appropriate, a roster of its officers and representatives, a copy of its constitution and by laws, and a statement of its objectives.

.02 Determination of Appropriate Units for Labor Organization Representation.

a. In order to ensure employees the fullest freedom in exercising the rights guaranteed under this Order, an appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall be determined to be appropriate only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of operations of, the Department.

b. A unit shall not be determined to be appropriate under this subparagraph solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes:

1. Any management official or supervisor except as provided in paragraph 5.03 of this Order;

2. A confidential employee;

3. An employee engaged in personnel work in other than a purely clerical capacity;

4. An employee engaged in administering the provisions of this Order;

5. Both professional and other employees, unless a majority of the professional employees vote for inclusion in the unit;

6. Any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security; or

7. Any employee primarily engaged in investigative or audit functions relating to the work of individuals employed by the Department whose duties directly affect the internal security of the Department, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity.

c. Any employee who is engaged in administering any provision of law relating to labor-management relations may not be represented by a labor organization:

1. Which represents other individuals to whom such provision applies; or

2. Which is affiliated directly or indirectly with an organization which represents other individuals to whom such provision applies.

d. Two or more units in the Department for which a labor organization is the exclusive representative may, upon petition by the Department or labor organization, be consolidated with or without an election into a single larger unit if the Authority considers the larger unit to be appropriate.

.03 Determinations as to exclusive Recognition.

The Authority, under regulation it prescribes, shall make determinations as to the exclusive recognition to be accorded to labor organizations representing Department employees, appropriate bargaining units within the Department, and whether or not a labor organization continues to be a representative of the Department's employees.

a. One copy of all requests for exclusive recognition or consolidation of units and one copy of all material referred to the Authority concerning questions as to the appropriateness of units and related issues shall be forwarded to the Director of Personnel.

b. One copy of any request from an operating unit to the Authority to supervise an election, any challenge to the validity of a showing of interest, any challenge to the status of a labor organization, any request to the Authority to examine objections to an election or challenged ballots shall be forwarded to the Director of Personnel. All employees eligible to vote shall be provided the opportunity to choose from among the labor organizations on the ballot, that labor organization which the employees wish to represent them, or not to be represented by a labor organization.

c. One copy of any request by an operating unit to the Authority to conduct an election to determine whether or not a labor organization should cease to be the exclusive representative of employees in an existing unit of recognition shall be forwarded to the Director of Personnel. Operating units shall include with their submission to the Director, the supportive evidence that there is a good faith doubt that the labor organization represents a majority of the employees in the unit and/or that the unit is no longer appropriate.

.04 National Consultation Rights.

a. When no labor organization has been accorded exclusive recognition on a Departmentwide basis, a labor organization which is the exclusive representative of a substantial number of the employees of the Department, or primary national subdivision thereof, as determined in accordance with criteria prescribed by the Authority, shall be granted national consultation rights at the national level by the Director of Personnel, and at the primary national subdivision level by an appropriate appointing officer. (See Appendix A to Department Administrative Order 202-250.) National consultation rights shall be terminated by the Director of Personnel or appropriate appointing officer when the labor organization no longer meets the criteria prescribed by the Authority. Any issue relating to any labor organization's eligibility for, or continuation of, national consultation rights shall be subject to determination by the Authority.

b. Any labor organization having national consultation rights with the Department shall:

1. Be informed by the Director of Personnel (in the case of national consultation rights at the national level) or an appropriate appointing officer (in the case of national consultation rights at the primary national subdivision level) of any substantial change in conditions of employment proposed by the Department or primary national subdivision, and

2. Be permitted reasonable time to present its views and recommendations regarding the changes.

c. If any views or recommendations are presented to the Department or primary national subdivision under subparagraph .04b.2., above, by any labor organization:

1. The Department or primary national subdivision shall consider the views or recommendations before taking final action on any matter with respect to which the views and recommendations are presented; and

2. The Department or primary national subdivision shall provide the labor organization a written statement as to the reason or basis for taking the final action.

d. Nothing in this paragraph shall be construed to limit the right of the Department or of any exclusive representative with which the Department has formal dealings to engage in collective bargaining.

.05 Representation Rights and Duties.

a. A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. 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.

b. An exclusive representative of an appropriate unit in the Department shall be given the opportunity to be represented at:

1. Any formal discussion between one or more representatives of the Department and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment; or

2. Any examination of an employee in the unit by a representative of the Department in connection with an investigation if:

(a) the employee reasonably believes that the examination may result in disciplinary action against the employee; and

(b) the employee requests representation.

3. Operating units are responsible for annually informing their employees of their rights under subparagraph .05b.2.,

c. The Department and any exclusive representative in any appropriate unit in the Department, through appropriate representatives, shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement. In addition, the Department and the exclusive representative may determine appropriate techniques, consistent with the provisions of paragraph 3.09 of this Order, to assist in any negotiation. Operating units shall forward to the Director of Personnel a copy of all written bargaining proposals initiated by management or a labor organization prior to negotiations by either management or the labor organization. Proposals made prior to negotiations in response to such initiatives shall also be forwarded to the Office of Personnel. The Director of Personnel shall provide the operating unit with comments and suggestions for consideration, as appropriate.

d. The rights of an exclusive representative under the provisions of this paragraph shall not be construed to preclude an employee from:

1. Being represented by an attorney or other representative, other than the exclusive representative, of the employee's own choosing in any grievance or appeal action; or

2. Exercising grievance or appellate rights established by law, rule, or regulation; except pursuant to grievance or appeals procedures negotiated under this Order.

e. The duty of the Department and an exclusive representative to negotiate in good faith under this paragraph shall include the obligation:

1. To approach the negotiations with a sincere resolve to reach a collective bargaining agreement;

2. To be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment;

3. To meet at reasonable times and convenient places as frequently as may be necessary ; and to avoid unnecessary delays;

4. In the case of the Department, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data meeting the following criteria:

(a) it is normally maintained by the Department in the regular course of business;

(b) it is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and

(c) it does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining; and

5. If agreement is reached, to execute on the request of any party to the negotiations a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement.

f. An agreement between the Department and an exclusive representative shall be subject to the approval of the head of the operating unit concerned and the Director of Personnel, or if an agreement applies to two or more operating units, by the head of each operating unit involved
and the Director of Personnel. In addition, any such agreement shall be examined for legal form and effect by the General Counsel of the Department or by a designee of the General Counsel. An agreement will be approved within 30 days of its execution if the agreement is in accordance with Chapter 71 of Title 5 U.S.C. and other applicable law, rule, or regulation (unless the Department has granted an exception to a policy or regulation). An agreement that has not been approved or disapproved within 30 days from the date of its execution shall go into effect without the required approval and shall be binding on the parties subject to the provisions of Chapter 71, Title 5, U.S.C. and other applicable law, rule, or regulation. A local agreement subject to a national or other controlling agreement at a higher level shall be approved under the procedures of the controlling agreement or, if none, under Department regulations and this Order.

.06 Allotments to Representatives.

a. If an operating unit has received from an employee in an appropriate unit a written assignment that authorizes the operating unit to deduct from the pay of the employee a sum for the payment of regular and periodic dues of the exclusive representative of the unit, the operating unit shall honor the assignment and make an appropriate allotment pursuant to the assignment. Any administrative expense concerning the assignment shall be made at no cost to the exclusive representative or the employee. Except as provided under subparagraph .06b., below, any such assignment may not be revoked for a period of 1 year.

b. An allotment under subparagraph .06a., above, shall terminate when:

1. An agreement between the operating unit and the exclusive representative involved concerning withholding of dues ceases to be applicable to the employee; or

2. The employee is suspended or expelled from membership in the exclusive representative.

c. Subject to the limitations to this subparagraph, if a petition has been filed with the Authority by a labor organization alleging that 10 percent of the employees in an appropriate unit in an operating unit have membership in the labor organization, the Authority shall investigate the petition to determine its validity. Upon certification by the Authority of the validity of the petition, the operating unit shall have a duty to negotiate with the labor organization solely concerning the deduction of dues of the labor organization from the pay of the members of the labor organization who are employees in the unit and who make a voluntary allotment for such purpose.

1. The provisions of this subparagraph shall not apply in the case of any appropriate unit for which there is an exclusive representative.

2. Any agreement under this subparagraph between a labor organization and an operating unit with respect to an appropriate unit shall be null and void upon the certification of an exclusive representative of the unit.

.07 Unfair Labor Practices.

a. Department of Commerce management shall not:

1. Interfere with, restrain, or coerce any employee in the exercise by the employee of any right under Chapter 71 of Title 5, U.S.C., or this Order;

2. Encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment;

3. Sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status;

4. Discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given information or testimony under Chapter 71 of Title 5, U.S.C., or this Order;

5. Refuse to consult or negotiate in good faith with a labor organization as required by Chapter 71 of Title 5, U.S.C., or this Order;

6. Fail or refuse to cooperate in impasse procedures and impasse decisions as required by Chapter 71 of Title 5, U.S.C. and this Order;

7. Enforce any rule or regulation (other than a rule or regulation implementing section 2302 of Chapter 23, Title 5, U.S.C. relating to prohibited personnel practices) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed; or

8. Otherwise fail or refuse to comply with any provision of Chapter 71 of Title 5, U.S.C., or this Order.

b. A labor organization shall not:

1. Interfere with, restrain, or coerce any employee in the exercise by the employee of any right under Chapter 71 of Title 5, U.S.C. or this Order;

2. Cause or attempt to cause Department of Commerce management to discriminate against any employee in the exercise by the employee of any right under Chapter 71 of Title 5, U.S.C. or this Order;

3. Coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for purpose of hindering or impeding the member's work performance or productivity as an employee or the discharge of the member's duties as an employee;

4. Discriminate against an employee with regard to the terms or conditions of membership in the labor organization on the basis of race, creed, color, national origin, sex, age, preferential or non-preferential civil service status, political affiliation, marital status, or handicapping condition;

5. Refuse to consult or negotiate in good faith with Department of Commerce management as required by Chapter 71 of Title 5, U.S.C., or this Order;

6. Fail or refuse to cooperate in impasse procedures and impasse decisions as required by Chapter 71 of Title 5, U.S.C., or this Order;

7. Call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency's operations, or to condone any activity described in this subparagraph by failing to take action to prevent or stop such activity; or

8. Otherwise fail or refuse to comply with any provision of Chapter 71 of Title 5, U.S.C., or this Order. Nothing in subparagraph .07b.7., above, shall result in any informational picketing by employees or their representatives being considered as an unfair labor practice so long as such picketing does not interfere with an agency's operations and is not performed while the employees are in a duty status.

c. For the purpose of Chapter 71 of Title 5, U.S.C. and this Order, it shall be an unfair labor practice for an exclusive representative to deny membership to any employee in the appropriate unit represented by the exclusive representative except for failure to:

1. Meet reasonable occupational standards uniformly required for admission; or

2. Tender dues uniformly required as a condition of acquiring or retaining membership. This subparagraph does not preclude any labor organization from enforcing discipline in accordance with procedures under its constitution or by laws to the extent consistent with the provisions of Chapter 71 of Title 5, U.S.C. and this Order.

d. Issues that can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this paragraph. Except for matters wherein, under subparagraphs 4.0le. and f. of this Order, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this paragraph, but not under both procedures.

e. The expression of any personal view, argument, opinion or the making of any statement which publicizes the fact of a representational election and encourages employees to exercise their right to vote in such election, corrects the record with respect to any false or misleading statement made by any person, or informs employees of the Department's policy relating to labor-management relations and representation shall not, if the expression contains no threat of reprisal or force or promise of benefit, or was not made under coercive conditions, constitute an unfair labor practice under, or constitute grounds for setting aside of any election conducted under, provisions of Chapter 71 of Title 5, U.8.C., or this Order.

f. If the Department, any operating unit, or a labor organization is charged by a person with having engaged in an unfair labor practice, the General Counsel of the Authority shall investigate the charge and may issue and cause to be served upon the Department or operating unit or labor organization a complaint. The General Counsel of the Authority may prescribe regulations providing for informal methods by which the alleged unfair labor practice may be resolved prior to the issuance of the complaint.

1. Formal complaints by the General Counsel of the Authority alleging an unfair labor practice shall be heard in accordance with procedures established by the Authority.

2. One copy of all unfair labor practice charges or complaints filed against an operating unit, and one copy of all other documents pertaining thereto, shall be furnished to the Director of Personnel.

3. Heads of operating units shall forward one copy of any proposed charge alleging an unfair labor practice against a labor organization to the Director of Personnel for review and consultation prior to filing the charge with the Authority’s General Counsel.

g. In the case of any labor organization which by omission or commission has willfully and intentionally, with regard to any strike, work stoppage, or slowdown, violated section 7116(b)(7) of Chapter 71 of Title 5, U.S.C. (making it an unfair labor practice for a labor organization to call, or participate in, a strike, work stoppage, or slowdown), the Authority shall, upon appropriate findings of such violation, revoke the exclusive recognition status of the labor organization, which shall then immediately cease to be legally entitled and obligated to represent employees in the unit, or take any other appropriate disciplinary action.

.08 Duty to Bargain in Good Faith and Compelling Need.

a. The duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Governmentwide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Governmentwide rule or regulation.

b. The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Governmentwide rule or regulation, extend to matters which are the subject of any Department or operating unit rule or regulation only if the Authority has determined that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation.

c. Subparagraph .08b., above, applies to any rule or regulation issued by the Department or an operating unit. Such rule or regulation may only be challenged by a representative who represents an appropriate unit including not less than a majority of the employees in the Department or operating unit, as the case may be, to whom the rule or regulation applies.

1. Any determination made by the head of an operating unit alleging that an operating unit rule or regulation bars the negotiation of a proposal because there is a compelling need for such rule or regulation shall be coordinated with the operating unit's legal counsel prior to issuance. An operating unit shall forward to the Office of Personnel copies of such issuances.

2. Any question as to whether or not a statute would bar negotiation of a proposal or a Departmentwide rule or regulation would bar negotiation because there is a compelling need for such rule or regulation shall be forwarded to the Director of Personnel for decision.
The Director of Personnel shall coordinate any decision on the matter with the Department's General Counsel prior to issuing any decision.

d. In any case of collective bargaining in which an exclusive representative alleges that no statute bars negotiation of a proposal or that no compelling need exists for any rule or regulation referred to in subparagraph .08c., above, which is then in effect and which governs any matter at issue in such collective bargaining, the Authority shall determine, in accordance with regulations it prescribes, whether or not the statute bars negotiation or such compelling need exists.

.09 Negotiation Impasses; Federal Service Impasses Panel.

a. The Federal Mediation and Conciliation Service {FMCS) shall provide assistance to agencies and exclusive representatives in the resolution of negotiation impasses. The FMCS shall determine under what circumstances and in what manner it shall provide services and assistance. Any operating unit of the Department that initiates a request for FMCS services shall
provide the Director of Personnel with information as to the nature of the issue(s) in dispute and the position(s)) on the issue(s) by management and the labor organization.

b. If voluntary arrangements, including the services of the FMCS or any other third-party mediation, fail to resolve a negotiation impasse either party may request the Federal Service Impasses Panel to consider the matter, or the parties may agree to adopt a procedure for binding arbitration of the negotiation impasse, but only if the procedure is approved by the Panel.

c. Any request on behalf of the Department for the Panel to consider an impasse shall be coordinated with the Director of Personnel prior to submission to the Panel.

d. The Panel shall consider any impasse presented to it under procedures it shall establish. Notice of any final decision of the Panel shall be binding on the parties during the term of the agreement, unless the parties agree otherwise.

SECTION 4. GRIEVANCES, APPEALS AND REVIEW.

.01 Grievance Procedures. a. Any collective bargaining agreement between the Department, or an operating unit, and a labor organization shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subparagraphs .01d. and e., below, the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage. Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement.

b. Any negotiated grievance procedure referred to in subparagraph .01a., above, shall:

1. Be fair and simple;

2. Provide for expeditious processing; and

3. Include procedures that :

(a) assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances;

(b) assure such an employee the right to present a grievance on the employee's own behalf, and assure the exclusive representative the right to be present during the grievance proceeding; and

(c) provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the Department or operating unit. One copy of all arbitration awards shall be furnished to the Director of Personnel.

c. The proceeding subparagraphs of this paragraph shall not apply with respect to any grievance concerning:

1. Any claimed violation of subchapter III of Chapter 73 of Title 5, U.S.C. (relating to prohibited political activities);

2. Retirement, life insurance, or health insurance;

3. A suspension or removal under section 7532 of Title 5, U.S.C. (relating to suspensions in the interest of national security);

4. Any examination, certification, or appointment; or

5. The classification of any position which does not result in the reduction in grade or pay of an employee.

d. An aggrieved employee affected by a prohibited personnel practice under section 2302(b)(1) of Title 5, U.S.C., (relating to discrimination on the basis of race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation), which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both. An employee shall be deemed to have exercised his or her option at such time as the employee timely files a grievance in writing, in accordance with the provisions of the parties’ negotiated procedure, or the employee timely initiates an action under the applicable statutory procedure, whichever occurs first. Selection of the negotiated procedure in no manner prejudices the right of an aggrieved employee to request the Merit Systems Protection Board to review the final decision pursuant to section 7702 of Title 5, U.S.C. (relating to appeals from actions involving discrimination) in the case of any personnel action that could have been appealed to the Board, or, where applicable, to request the Equal Employment Opportunity Commission to review a final decision in any other matter involving a complaint of discrimination of the type prohibited by any law administered by the Equal Employment Opportunity Commission.

e. Matters covered under section 4303 of Title 5, U.S.C. (relating to reduction in grade or removal of an employee for unacceptable performance) and section 7512 of Title 5, U.S.C. (relating to removal, suspension for more than 14 days, reduction in pay or grade, or furlough for 30 days or less) which also fall within the coverage of the negotiated procedure may, in the discretion of the aggrieved employee, be raised either under the appellate procedures of the Board or under the negotiated grievance procedure, but not both. Similar matters which arise under other personnel systems applicable to employees covered by this Order may, in the discretion of the aggrieved employee, be raised either under the appellate procedures, if any, applicable to those matters, or under the negotiated grievance procedure, but not both. An employee shall be deemed to have exercised his or her option at such time as the employee files a notice of appeal under the applicable appellate procedures or timely files a grievance in writing in accordance with the provisions of the parties' negotiated grievance procedure, whichever event occurs first. In hearing appeals from decisions of the Department taken under the provisions of the negotiated grievance procedure, arbitrators shall sustain the decision of the Department only if the decision:

1. In the case of an action based on unacceptable performance is supported by substantial evidence, or

2. In any other case, is supported by a preponderance of the evidence.

f. In matters covered under subparagraph .0le., above, which have been raised under the negotiated grievance procedure, the award of an arbitrator shall be subject to judicial review in the same manner and under the same conditions as if the matter had been decided by the Board. In matters similar to those covered by subparagraph .0le., above, which arise under other personnel systems and which an employee has raised under the negotiated grievance procedure, judicial review of an arbitrator’s award may be obtained in the same manner and on the same basis as could be obtained of a final decision in such matters raised under applicable appellate procedures.

.02 Exceptions to Arbitral Awards.

a. Either party to arbitration under this Order may file with the Authority an exception to any arbitrator's award (other than an award relating to a matter described in subparagraph .01f., above). If upon review the Authority finds the award is deficient because it is contrary to any law, rule, or regulation, or on other grounds similar to those applied by Federal courts in private sector labor-management relations, the Authority may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable law, rules, and regulations.

b. If no exception to an arbitrator's award is filed under subparagraph .02a., above, during the 30-day period beginning on the date of the award, the award shall be final and binding. The Department shall take the actions required by an arbitrator's final award. The award may include the payment of backpay as provided in Section 5596 of Title 5, U.S.C.

c. A copy of any requests for Authority review of an arbitration award shall be forwarded to the Director of Personnel.

.03 Judicial Review; Enforcement.

a. Any person aggrieved by any final Order of the Authority (other than an Order under paragraph .02, above, unless the Order involves an unfair labor practice; or an Order involving an appropriate unit determination) may, during the 60-day period beginning on the date on which the Order was issued, institute an action for judicial review of the Authority's Order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia.

b. The Authority may petition any appropriate United States court of appeals for the enforcement of any Order of the Authority and for appropriate temporary relief or restraining Order.

c. Upon the filing of a petition for judicial review or enforcement, the court shall have jurisdiction of the proceeding and of the question determined therein and may grant any temporary relief it considers just and proper. The filing of a petition shall not operate as a stay of the Authority's Order unless the court specifically orders the stay. The judgement and decree of the court shall be final except the judgement and decree shall be subject to review of the Supreme Court of the United States upon writ of certiorari or certification. Any request by an operating unit for judicial review of any final Order of the Authority shall be approved by the Office of the General Counsel or a designee. One copy of any such request shall be furnished to the Director of Personnel.

d. The Authority may, upon issuance of a complaint charging that any person has engaged or is engaging in an unfair labor practice, petition any United States district court within any district in which the unfair labor practice in question is alleged to have occurred or in which such person resides or transacts business for appropriate temporary relief (including a restraining order). The court shall have jurisdiction to grant any temporary relief it considers just and proper, but shall not grant any temporary relief if it would interfere with the ability of the Department to carry out its essential functions or if the Authority fails to establish probable cause that an unfair labor practice is being committed. One copy of any such petition received by an operating unit shall be furnished to the Office of Personnel.

.04 Subpenas.

a. Any member of the Authority, the General Counsel, or the Panel, any administrative law judge appointed by the Authority, and any employee of the Authority designated by the Authority may issue subpenas requiring the attendance and testimony of witnesses and the production of documentary or other evidence from any place in the United States; and administer oaths, take or order the taking of depositions, order responses to written interrogatories, examine witnesses, and receive evidence. The Department shall not be required under this subparagraph to disclose intramanagement guidance, advice, counsel, or training within the Department or between the Department and the Office of Personnel Management.

b. In the case of contumacy or failure to obey a subpena properly issued, the United States district court for the judicial district in which the person to whom the subpena is addressed resides or is served may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt thereof.

c. Witnesses shall be paid the same fee and mileage allowances which are paid subpenaed witnesses in the courts of the United States.

SECTION 5. ADMINISTRATIVE AND OTHER PROVISIONS.

.01 Official Time.

a. Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this Order shall be authorized official time for such purpose, including attendance at impasse proceedings, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized shall not exceed the number of individuals designated as representing the Department for such purposes.

b. Any activity performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a non-duty status .

c. Except as provided in subparagraph .01a., above, the Authority shall determine whether or not any employee participating, for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status.

d. Except as provided in the preceeding subparagraphs of this section any employee representing an exclusive representative, or, in connection with any other matter covered by this Order, any employee in an appropriate unit represented by an exclusive representative shall be granted official time in any amount the Department and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.

.02 Continuation of Existing Laws, Recognitions, Agreements and Procedures.

a. Nothing contained in this Order shall preclude:

1. The renewal or continuation of an exclusive recognition, certification of an exclusive representative, or a lawful agreement between the Department and an exclusive representative of its employees, which is entered into before the effective date of Chapter 71, Title 5, U.S.C.; or

2. The renewal, continuation, or initial according of recognition for units of management officials or supervisors represented by labor organizations which historically or traditionally represent such officials in private industry and which hold exclusive recognition for units of such officials in the Department on the effective date of Chapter 71, Title 5, U.S.C.

b. Policies, regulations and procedures established under and decisions issued under Executive Orders l1491, 11616, 11636, 11787 and 11838, or under any other Executive Order, as in effect on January 11, 1979, shall remain in full force and effect until revised or revoked by the President or unless superseded by specific provisions of Chapter 71, Title 5, U.S.C., or by regulations or decisions issued pursuant to Chapter 71.

.03 Use of Department Facilities.

a. An operating unit may furnish customary and routine services and facilities to a labor organization when, in the judgement of the operating unit, its furnishing of such services and facilities would be consistent with the best interests of the Department, Department employees, and the labor organization. If on request, such services, and facilities are furnished, it must be on an impartial basis to organizations having equivalent status.

b. In determining whether or not the furnishing of customary and routine services and facilities to a labor organization would be consistent with the best interests of the Department, an operating unit shall consider, among other things, whether or not furnishing of the proposed service or facility:

1. Would be consistent with the concept of maintaining constructive and cooperative relationships between labor organizations and management officials;

2. Would result in its being utilized solely for purposes related to achievement of the objectives of sound labor-management relations;

3. Would tend to interfere with or impair the proper functioning of any Department activities;

4. Would tend to disturb other employees;

5. Would tend to result in increased costs to the Government;

6. Would be consistent with safety, security, and other applicable laws, regulations, and policies (e.g., General Services Administration regulations, Joint Committee on Printing regulations, etc.); and

7. Would be subject to agreement by the labor organization to abide by conditions which the operating unit may deem reasonable to prevent abuse or misuse of the privilege extended and which are specific enough to permit withdrawal of the privilege if a condition should be violated.

c. When management officials of the Department deem it to be consistent with the best interests of the Department, they may grant permission, subject to revocation after discussion with officials of the labor organization, for the labor organization to;

1. Hold meetings on Department premises;

2. Use specified bulletin boards of the Department;

3. Place notices of meetings and other notices relating to internal business of the organization in employee bulletins and specified media for internal communication with employees;

4. Conduct other internal labor organization business on Department premises; and

5. Use the inter-office and intra-office messenger and mail system for distribution of labor organization communications on matters relating solely to subject matter within the purview of the Federal labor-management relations program, provided (a) an agreement is reached in advance with the operating unit concerned as to the kinds and volume of material to be distributed, the times and places of such distribution, and other relevant factors, and (b) each item to be distributed through the system is cleared in advance by a representative of the operating unit concerned as being consistent with the maintenance of constructive and cooperative relationships between the labor organization concerned and management officials.

d. In general, a labor organization shall not be granted free office space on Department premises.

SECTION 6. EFFECT ON OTHER ORDERS.

This Order supersedes Department Administrative Order 202-711, date May 11,1978.

Signed by: Acting Director of Personnel

Approved by: Assistant Secretary for Administration

Index Changes:

Change
Meetings
Employee Organization 202-711 5
Strikes, Employee 202-711 3

DAO 202-711 Amendment 1

Effective Date - July 10, 1987

LABOR-MANAGEMENT RELATIONS
Department Administrative Order 202-711, dated September 25, 1979, is hereby amended as shown below. The purposes of this amendment are (1) to change a portion of the Order to more accurately reflect the meaning intended by the statute [5 U.S.C. 7117 (a) (3)], and (2) to provide a procedure for handling requests for payment of per diem allowances and travel expenses to employees who are union negotiators.

1. SECTION 3. RIGHTS AND DUTIES OF LABOR ORGANIZATIONS AND MANAGEMENT. Subparagraph 3.08c. Is revised to read as follows:
"c. Subparagraph .08b., above, applies to any rule or regulation issued by the Department or an operating unit, unless an exclusive representative represents an appropriate unit including not less than a majority of the employees in the Department or operating unit, as the case may be, to whom the regulation is applicable."

2. SECTION 5. ADMINISTRATIVE AND OTHER PROVISIONS. In pen and ink, change the title of paragraph .01 from"Official Time" to read "Official Time, Travel and Per Diem." And add a new subparagraph .01e. To read as follows:
"e. Payment of travel expenses and per diem allowances to union negotiators who are employees of the Department is not authorized unless the Director of Personnel first certifies that such travel would be in the primary interest of the Government."

Signed by: Director for Personnel & Civil Rights

Approved by: Assistant Secretary for Administration