December 18, 1996


TO: Regional Directors

FROM: Joe Swerdzewski, General Counsel

SUBJECT: Guidance on Proper Descriptions of Bargaining Units and Identification of Parties to the Collective Bargaining Relationships in Certifications

This memorandum provides guidance to the Regional Directors on identifying and correcting inaccurate descriptions of bargaining units and parties to a collective bargaining relationship in certifications. The memorandum is divided into three parts. Part I explains why it is important that certifications accurately describe unit inclusions and exclusions and reflect the proper and current names of the parties to the exclusive bargaining relationship. Part II describes situations which may cause a certification to become improper. Part III suggests ways that the Regional Offices can assist agencies and unions in filing appropriate representation petitions to resolve questions related to proper certifications.

PART I. Significance of Certifications of Representative

The certification of representative is the formal document issued by a Regional Director that certifies that a labor organization has been selected as the exclusive representative by a majority of the employees in an appropriate unit who cast valid ballots in a secret ballot election. Once a labor organization is certified, the Federal Service Labor Management Relations Statute (Statute) requires an agency to recognize a labor organization for the purposes of collective bargaining about matters affecting the bargaining unit employees' conditions of employment. The certified union also is required to represent all employees in the bargaining unit without discrimination and without regard to membership in the union.

The bargaining unit sets the stage for the entire collective bargaining process. Maintaining accurate and current certifications is the only way in which the parties to an exclusive bargaining relationship can ensure that the bargaining unit continues to be appropriate and accurately reflects the parties to the bargaining relationship. The Statute includes provisions to clarify or amend any certification relating to the representation of employees in a bargaining unit. Implementing regulations are set forth in Part 2422 of the Authority's Regulations.

Certifications that do not accurately reflect the bargaining unit or the parties to the collective bargaining relationship have the potential of creating a myriad of problems that could result in unfair labor practice charges. For example, an agency may refuse to check-off dues and negotiate with a union based on a dispute over which employees the union represents. Often, these types of disputes may be avoided if the parties file a representation petition to resolve issues concerning their unit descriptions and the identity of the agency and the union.

PART II. Certifications That Do Not Properly Reflect the Recognized Unit or the Parties to the Collective Bargaining Relationship

A certification that does not properly reflect the unit description and the parties to the collective bargaining relationship impairs the parties' ability to carry on the collective bargaining process. This occurs when changes in the description of the unit or in the union's or agency's identity are not reflected in the certification. These are some common situations where a certification can be inaccurate:

1. Changes are made in the status of individual employees in the bargaining unit due to some personnel action.

For example, employees designated as supervisors are reclassified as non-supervisory team leaders.

2. Employees who were specifically identified in the unit description are transferred out of the bargaining unit.

For example, a specific type of employee or employees of a particular entity who are specifically identified in the unit description are removed from the unit by transfer or disestablishment of the employing entity.

3. Employees are acquired by another agency.

For example, agency A acquires employees who formerly worked at agency B or at another subdivision of agency A in a separate bargaining unit.

4. The name of an employing agency changes.

5. The employing agency ceases to exist.

6. The name of the union representing the employees changes.

For example, the union changes affiliation or merges with another union.

7. The union representing the employees ceases to exist.

8. Due to a reorganization, realignment or some other change in the organization of the agency, there is a question to whether the existing units are appropriate under the Statute.

PART III. Assisting the Parties In Resolving Issues Concerning Proper Certifications

The Regions can assist the parties in identifying those units where the certifications do not properly reflect the unit description or the identity of the union or agency by the following actions.

1. When petitions are filed, review the petition and the existing certification to determine if: a) the current composition of employees in the unit is properly designated; b) the agency/activity and the union are properly identified; and c) the exclusions conform to the Statute.

2. When petitions are filed, determine whether the petition raises issues related to the accuracy and continued appropriateness of the unit.

3. Educate the parties about the importance of maintaining accurate unit descriptions and the representation process for accomplishing that goal. This can be accomplished: during town meetings; while delivering facilitation, intervention, training and education programs; and while processing unfair labor practice and representation cases.

4. Offer to provide technical assistance and/or prefiling assistance to the parties pursuant to section 2422.13(a) of the Regulations.

5. Distribute the attached checklist to enable unions and agencies to determine if there is a need to file a representation petition to ensure that their unit description properly identifies the unit and the parties to the collective bargaining relationship.

Regional Directors should continue to contact the Office of the General Counsel if any questions arise concerning the appropriateness of resolving issues related to updating a unit description during the processing of a petition.

Attachment (Certification Checklist)