Part 4 - Bypasses, Grievances under the negotiated grievance procedure, and representation rights created by contract and past practices
A. Bypass of the Exclusive Representative
1. Duty to Deal Only with the Union
In certain situations, an agency must deal only with the union that exclusively represents the bargaining unit employees. The agency may not deal with the employees directly, even if the agency offers the union an opportunity to be present and to actively participate. Rather, the union can insist that the agency only deal with it. This right derives from the statutory mandate in section 7114(a) that :
(a)(1) 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.
The type of situation where the agency must deal only with the union are those where the matter concerns grievances or bargaining over negotiable conditions of employment. [n63] In other words, if the matter is something over which the union has a statutory right to represent the employees, then the agency must deal only with the union. However, just because a matter concerns a negotiable condition of employment does not automatically mean that the agency may not communicate or meet with employees over that topic. Rather, it is only in those circumstances where the union has a statutory right/obligation to represent that the bypass prohibition is inserted. For example, an agency must only negotiate with the union over conditions of employment. [n64] However, an agency may circulate surveys or hold formal discussions with the opportunity for union representation to obtain employee feedback on how agency programs and processes are operating, even though any changes in those programs or processes may need to be negotiated before implementation. [n65]
Thus, for a bypass to exist, there must be agency interaction with one or more employees when the agency should instead be dealing directly and exclusively with the appropriate exclusive representative. The following questions should be considered in determining if there is a potential for a bypass situation:
What statutory right grants the union the right to deal exclusively with the agency over the subject matter at issue?
Does the subject matter concern a grievance under a negotiated grievance procedure or a negotiable condition of employment?
Were the parties engaged in, or preparing for, collective bargaining over the subject matter?
2. Strategies to Avoid Bypass Situations
It is sometimes difficult for parties to distinguish an agency's unlawful bypass of an exclusive representative from a lawful agency communication or a meeting with unit employees. One step that an agency can employ to avoid bypass allegations is simply to refrain from meeting alone with any employee involved in a grievance filed under the negotiated agreement. Also, in my view, the easiest way to avoid conflict over possible bypasses is for an agency to keep the union informed of its intentions to communicate with unit employees over conditions of employment. Many times, a bypass allegation accompanies situations where a union is not given the opportunity to be present at a formal discussion. Seldom are bypass allegations made when a union is invited to participate in such formal discussions. Similarly, if an agency intends to use a survey to obtain employee feedback, notification to and involvement of the union in that survey should alleviate any concerns over a bypass. The situation becomes less clear when a union is invited to a formal discussion but declines based on its belief that the agency has no right to deal with the employees at all on the issue, but only with the union. The Regions are requested to investigate and consider the three factors listed above and then submit such cases for advice.
B. Grievances Under the Negotiated Grievance Procedure
1. Right to Representation
Section 7121 of the Statute sets forth the framework and requirements for negotiated grievance procedures under the Statute. With respect to the right to representation, section 7121(b) provides employees with two options: (1) a grievance may be filed by a union on behalf of the employee; or (2) an employee may file a grievance on his/her own behalf. [n66] When a union files a grievance on behalf of an employee, the agency is required to deal only with the union over all matters pertaining to that grievance. Any dealing with the employee in the absence of the union would be contrary to section 7121 and a bypass of the union, as well as a formal discussion violation. [n67] Should an employee choose to file a grievance on his/her own behalf, the union would not be the representative of the employee for purposes of the grievance. [n68] Nonetheless, the Statute requires that the union must be afforded the opportunity to be present during the processing of the grievance. [n69] The reason for this requirement is to enable the union to represent, when and if applicable, its views on any institutional interests of the union in interpreting the contract which is applicable to all unit employees.
2. Strategies to Avoid Disputes over Representation at Grievances
As noted above at section A.2. regarding bypasses, the easiest way for an agency to avoid violating this right is to refrain from meeting alone with any grievant who has filed a grievance under the negotiated grievance procedure, whether the grievance was filed by the union on behalf of the employee, or whether the employee filed the grievance and elected to represent him/herself or have the union as a representative. Many bypasses regarding grievances occur because of good intentions by an agency to resolve a pending grievance. The simplest way to avoid those situations is simply to not meet alone with a grievant. Similarly once an agency has recognized the union as a representative in a dispute between a unit employee and the agency, even if no grievance has been filed under the contract procedures, the agency acts at its peril if it deals only with the employee regarding the matter, even if such dealing is limited to delivering the final decision. [n70]
C. Representation Rights Created by Contract and Past Practices
1. Establishment of Rights Through Contracts
Parties may also create a right to representation through their negotiations or practice. Parties may negotiate the right to representation into their contract. The parties are free to identify those situations and conditions where union representation is appropriate. By negotiating such provisions, the parties are creating a contractual right to representation. Thus, these are situations where the Statute does not grant a right to representation, but rather the right to represent is negotiated as part of a contractual benefit. As a contract right and not a statutory right, any dispute over the implementation or breach of the right constitutes a grievance and not an unfair labor practice, unless the breach qualifies as a repudiation. [n71]
The parties may also define in their contract how they will exercise and implement their statutory rights. For example, a right for the union to be represented at a formal discussion is contained in the Statute. However, the parties may negotiate the manner in which that right would be exercised. The parties may negotiate, for example, requirements for notice and participation as discussed in section E.1. and 2. of Part II. As with contract rights establishing a right to representation, any dispute over whether a party has complied with a particular contract provision concerning how a statutory right would be exercised would again be a grievance and not an unfair labor practice, unless it is a repudiation. However, if a party charges that the other has not complied with a statutory right (rather than the particular contract provision), the contract provision that limits or defines the implementation of that statutory right may be a defense to the unfair labor practice allegation. [n72]
In sum:
Agreeing in a contract to additional rights to representation not contained in the Statute creates contract rights. Disputes over those contract provisions are grievances (unless there is a repudiation). For example, a contract clause granting a right to representation when an employee receives a notice of proposed discipline (which is not a statutory right) is a contract right, the breach of which is a grievance.
Agreeing in a contract to provisions that implement a statutory right creates contract rights. Disputes over those contract provisions are grievances (unless there is a repudiation). For example, a contract clause that requires an agency to give at least five days notice of a formal discussion and the agency gives only two days. The five days notice period is a contract right, the breach of which is a grievance. However, if two days notice is reasonable under the circumstances, although there may be a breach of the contract, there would be no formal discussion unfair labor practice since the union was afforded a reasonable opportunity to select a representative to attend the meeting.
Agreeing in a contract to provisions that limit a statutory right can result in an otherwise unlawful act being lawful, if that act is consistent with the contractual limitation. For example, if the contract requires the union to notify the agency of its designated representative within two days after receiving notice of a scheduled formal discussion, but designates its representative after three days, the union may have given up its right to representation at the formal discussion.
2. Establishment of Rights Through Past Practices
Parties also may create a right to representation through a practice. [n73] Under these circumstances, that representational practice many not be modified by either party without fulfilling the statutory bargaining obligation. In other words, the representational practice should be treated just as every other established condition of employment. It may be changed, but only through the statutory collective bargaining process.
3. Strategies to Avoid Disputes over Representation Rights Created by Contract and Past Practices
I suggest that should parties decide to create rights to representation in their contract, the contract language should be as clear as possible to avoid future disputes over its meaning and application. Vague language that is used to satisfy both parties' immediate concerns usually comes at the cost of future conflict. Any contractual right and corresponding obligation should be explicit, with a joint bargaining history and examples to guide the employees, union officials and managers. Similarly, contract language implementing a statutory right should be equally clear. The parties should understand that they are creating contractual rights and obligations and that, absent a repudiation, any unresolved dispute is a grievance and not an unfair labor practice.
Even more significant, if the parties agree to place some sort of limitation on existing statutory rights, such as formal discussions or the right not to be bypassed, the parties should make those limitations explicit. Before agreeing to place any limitation on the exercise of a statutory right, parties must realize that what was once an unfair labor practice may now become a lawful practice if the party charged merely acts in accordance with the contract.
--------------------------------------------------------------------------------
[ Home ] [ Decisions ] [ Search ] [ Site Map ]
--------------------------------------------------------------------------------
Footnote # 63 - Part IV
INS, Rosedale, 55 FLRA at 1038 (quoting from FCI Bastrop , 51 FLRA at 1346) (bypass, in addition to a formal discussion, when the agency met alone with an employee concerning a grievance) and Social Security Administration, 55 FLRA No. 160, 55 FLRA 978, 982-83 (1999) (bypass when an agency negotiated a last chance agreement with an employee that changed conditions of employment when there was no proposed formal discipline).
--------------------------------------------------------------------------------
Footnote # 64 - Part IV
E.g., Air Force Accounting and Finance Center, Lowry Air Force Base, Denver, Colorado, 42 FLRA No. 85, 42 FLRA 1226, 1239 (1991) (bypass when the agency approved and implemented bargaining unit employees proposal to provide late coverage for the office).
--------------------------------------------------------------------------------
Footnote # 65 - Part IV
Internal Revenue Service, (District, Region and National Units), 19 FLRA No. 48, 19 FLRA 353, 354-55 (1985) and Department of Defense, Office of Dependents Schools, 19 FLRA No. 94, 19 FLRA 762, 763-64 (1985), affirmed, 826 F.2d 114 (D.C. Cir. 1987) (no bypass by distributing questionnaires to unit employees soliciting their suggestion for improvement).
--------------------------------------------------------------------------------
Footnote # 66 - Part IV
Section 7121(b)(1)(C)(i) and (ii) provides:
(b) (1)Any negotiated grievance procedure referred to in subsection (a) of this section shall -
. . . . .
(C) include procedures that--
(i) 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;
(ii) 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 . . . .
--------------------------------------------------------------------------------
Footnote # 67 - Part IV
INS, Rosedale, 55 FLRA at 1038.
--------------------------------------------------------------------------------
Footnote # 64 - Part IV
An employee is precluded, however, from obtaining representation from any other source, such as a co-worker or a private attorney. American Federation of Government Employees, Local 1858, and U.S. Army Missile Command, U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, U.S. Army, Information Systems Command -Redstone Arsenal Commissary, 29 FLRA No. 14, 29 FLRA 69, 71-72 (proposal that required either a representative in a grievance to be a union official or to be approved by the union, and that also allowed employees to represent themselves, was negotiable).
--------------------------------------------------------------------------------
Footnote # 68 - Part IV
Section 7121(b)(1)(C)(ii) of the Statute.
--------------------------------------------------------------------------------
Footnote # 69 - Part IV
See 438th Air Base Group, McGuire Air Force Base, New Jersey, 28 FLRA No. 145, 28 FLRA 112 (1987) (bypass when the agency delivered a final decision on a disciplinary matter to an employee who had been represented by the union where the contract provided for union representation and the agency knew the employee had been represented) and Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA No. 39, 35 FLRA 345 (1990) (bypass when the agency presented final decisions on disciplinary actions to employees that had been represented by the union in oral and written responses to the discipline).
--------------------------------------------------------------------------------
Footnote # 70 - Part IV
Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, 51 FLRA No. 72, 51 FLRA 858 (1996) (Authority repudiation doctrine), also discussed in the OGC Guidance on "The Impact of Collective Bargaining Agreements on the Duty to Bargain and the Exercise of Other Statutory Rights" (March 5, 1997). Of course, once there is a contract right to be represented, the union has the statutory right to designate the union official to serve as that representative.
--------------------------------------------------------------------------------
Footnote # 72 - Part IV
Internal Revenue Service, Washington, D.C., 47 FLRA No. 193, 47 FLRA 1091 (1993) (establishes the Authority's contract interpretation defense to an unfair labor practice) and the OGC Guidance on "The Impact of Collective Bargaining Agreements on the Duty to Bargain and the Exercise of Other Statutory Rights" (March 5, 1997).
--------------------------------------------------------------------------------
Footnote # 73 - Part IV
See, e.g., Federal Aviation Administration, Washington, D.C. and Professional Airways Systems Specialists, 55 FLRA No. 198, 55 FLRA 1233 (2000) (established past practice for union representation on panels for rating, ranking and interviewing employees).