Bargaining Unit - Forest Service Council

Report
Melissa Baumann
NFFE Forest Service Council
Secretary-Treasurer
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A bargaining unit is a group of employees who
are represented by a Union.
The Federal Labor Relations Authority (FLRA)
has the final say about who is in a bargaining
unit.
Determinations are made based on definitions
and provisions in 5 USC 71.
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5 USC 7112. Determination of appropriate units
for labor organization representation
(a)
The Authority shall determine the
appropriateness of any unit. The Authority shall
determine in each case whether, in order to ensure
employees the fullest freedom in exercising the rights
guaranteed under this chapter, the appropriate unit
should be established on an agency, plant, installation,
functional, or other basis and shall determine any unit
to be an appropriate unit 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 the
operations of the agency involved.
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The Union can propose an appropriate unit when
organizing a new unit, but it must be “certified” by
FLRA.
Units found to appropriate in the Forest Service
Forests
Regional Offices
Research Stations
Law Enforcement
Enterprise Teams
Content Analysis Team
MTDC and SDTC
ASC-B&F
Washington Office (in DC and Arlington)
Chief Information Office
Law Enforcement and Investigation
Job Corps Civilian Conservation Center
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Bargaining Unit Employee (BUE) or Bargaining
Unit Member (BUM) is an employee who is a
member of a bargaining unit.
BUEs may or may not be dues-paying
members
5 USC 71 sets out certain exclusions for who
can be in a bargaining unit.
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5 USC 7112 (b) Sets out exclusions from
appropriate bargaining units:
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Management officials
Supervisors
Confidential employees
Personnel Work
Administering the Labor Statute
Unit containing both professionals and nonprofessionals
National Security
Investigation/audit
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7112. Determination of appropriate units for
labor organization representation
(b) A unit shall not be determined to be
appropriate under this … if it includes—
(1) except as provided under section
7135(a)(2) of this title, any management official
or supervisor;
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5 USC 7103(a)(11) -- “Management official"
means an individual employed by an agency in
a position the duties and responsibilities of
which require or authorize the individual to
formulate, determine, or influence the policies
of the agency
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The FLRA has defined a management official
to include individuals who:
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1) create, establish or prescribe general principles,
plans or courses of action;
2) decide upon or settle upon general principles,
plans or courses of action; or
3) bring about or obtain a result as to the adoption of
general plans, principles or courses of action.
(59 FLRA 858)
Note: Private Sector includes people who
“effectuate” policy. Federal does NOT.
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Employees who interpret regulations and policies and
have decision-making authority within that framework
do not effectively make or shape policy. Department of
Veterans Affairs, 60 FLRA 749, 2005.
A highly specialized individual who rendered advice to
management that was usually accepted was not a
management official. The advice was subject to
successive levels of review. DOL, Mine Safety and
Health Administration, 37 FLRA 1151, 1990.
Senior contracting officers were not deemed
management officials because their decisions were
guided by federal acquisition regulations and agency
policies. Defense Logistics Agency, 48 FLRA 285,
1993.
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5 USC 7113(a)(10) -- “Supervisor" means an individual
employed by an agency having authority in the interest
of the agency to hire, direct, assign, promote, reward,
transfer, furlough, layoff, recall, suspend, discipline, or
remove employees, to adjust their grievances, or to
effectively recommend such action, if the exercise of
the authority is not merely routine or clerical in nature
but requires the consistent exercise of independent
judgment,
except that, with respect to any unit which includes
firefighters or nurses, the term "supervisor" includes
only those individuals who devote a preponderance of
their employment time to exercising such authority (5
USC 7113(a)(10))
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Anyone who exercises supervisory authority is a
supervisor and excluded from the bargaining unit.
This authority includes: authority to hire, direct,
assign, promote, reward, transfer, furlough, layoff,
recall, suspend, discipline, or remove employees,
to adjust their grievances.
Except for Nurses and Firefighters: There is no
limit on the amount of time that someone
supervises that allows them to remain in the
bargaining unit.
Team leaders are generally NOT supervisors and
are included in the bargaining unit.
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An employee will be considered a supervisor if the
employee consistently exercises independent judgment
with regard to one or more of the supervisory indicia set
forth in the statute. National Mediation Board, 56 FLRA 1,
2000, 1990.
In order to be excluded from the bargaining unit,
firefighters must perform one or more of the supervisory
duties enumerated in the statute, and do so for a
preponderance of the time. Army Parks Reserve Training
Center, 61 FLRA 537, 2006.
An employee may be considered a supervisor if the
employee exercises independent judgment in the
evaluation of employee performance and that evaluation
is considered by upper management in taking an action
listed among the indicia of supervisory authority.
Department of Labor, 59 FLRA 853, 2004.
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A park ranger is in charge of a crew of three seasonal
workers during the fire season. During this period, the
park ranger assigns work to, and often works side by
side with, the crew, and evaluates them individually on
a monthly basis. The park ranger’s year-end
appraisals of his crew members are reviewed by the
Fire Manager, who uses the appraisals to decide
whether the employees are recommended for rehire.
The FLRA determined that he performed supervisory
duties, as defined under the statute. However, they
also determined that he was a firefighter. Thus, his
bargaining unit status depends on whether he
performs supervisory duties for more than 50% of his
time. Santa Monica Mtns., 50 FLRA 31, 1995.
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7112. Determination of appropriate units for
labor organization representation
(b) A unit shall not be determined to be
appropriate under this … if it includes—
(2) a confidential employee;
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5 USC 7103(a)(13) -- “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
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Employees who handled grievances and attended
meetings where labor-management matters were
discussed were significantly involved in labormanagement relations. DHHS Office of the
General Counsel, 45 FLRA 894 (1992).
A secretary for an executive whose secretarial
duties included the occasional review of
correspondence on personnel matters was not in a
confidential position; access to those materials
was not determinative if there was no other work in
a confidential capacity for a person who formulated
or effectuated management policies in the field of
labor relations. FMCS and NAGE Local R3-118, 5
FLRA 28 , (1981).
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7112. Determination of appropriate units for
labor organization representation
(b) A unit shall not be determined to be
appropriate under this … if it includes—
(3) an employee engaged in personnel work
in other than a purely clerical capacity;
There is no statutory definition of “personnel
work.”
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For a position to be excluded under this section, it must
be determined that the incumbent in the position is
involved in work directly relating to the personnel
operations of the employee's agency. 832nd Combat
Support Group, Luke Air Force Base, Ariz., 23 FLRA
768 (1986).
The character and extent of involvement of the
incumbent in personnel work must be more than
clerical in nature and the duties of the position in
question must not be performed in a routine manner.
The incumbent must exercise independent judgment
and discretion in carrying out the personnel duties.
Soc. Sec. Admin., 56 FLRA 1015, 1018 (2000), citing
Dep’t of the Treasury, Internal Rev. Serv., Wash.,
D.C., 36 FLA 138, 144 (1990).
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7112. Determination of appropriate units for
labor organization representation
(b) A unit shall not be determined to be
appropriate under this … if it includes-(4) an employee engaged in administering
the provisions of this chapter;
These are primarily the employees in the HR
Labor Relations branch.
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7112. Determination of appropriate units for
labor organization representation
(b) A unit shall not be determined to be
appropriate under this … if it includes-(5) both professional employees and other
employees, unless a majority of the
professional employees vote for inclusion in the
unit;
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Generally, professional employees are those
employees whose work requires advance
knowledge of a type that is usually acquired in
an institution of higher learning.
In practice, the OPM Qualifications Handbook
will give you a good idea of who is considered
a “professional” among the GS series.
http://www.opm.gov/qualifications/standards/in
dex-Standards.asp
Use the Group Coverage
Qualification Standard for
Technical and Medical
Support Positions…
Use the Group Coverage
Qualification Standard for
Professional and
Scientific Positions…
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In the Forest Service we have two consolidated
bargaining units:
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Professional employees
Non-Professional employees
because the professionals have not voted to be
included in the same bargaining unit as the
non-professionals.
This is why MA Appendix A has two lists.
However, in practice, we treat the two
bargaining units as a single unit.
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7112. Determination of appropriate units for
labor organization representation
(b) A unit shall not be determined to be
appropriate under this … if it includes—
(6) any employee engaged in intelligence,
counterintelligence, investigative, or security
work which directly affects national security;
Forest Service has few, if any, National
Security positions.
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7112. Determination of appropriate units for
labor organization representation
(b) A unit shall not be determined to be
appropriate under this … if it includes-(7) any employee primarily engaged in
investigation or audit functions relating to the
work of individuals employed by an agency
whose duties directly affect the internal security
of the agency, but only if the functions are
undertaken to ensure that the duties are
discharged honestly and with integrity.
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OIG auditors should be excluded from the bargaining unit
under 5 USC 7112(b)(7). Their audit functions, which could
uncover employee fraud, misuse of funds, or malfeasance,
related to internal security. U.S. Small Business
Administration and AFGE, Local 2532 and Council 228, 34
FLRA 392, (1990).
Internal Auditors reviewing the work of individuals whose duties
involved the implementation of agency programs were
excluded from the bargaining unit. The audits were designed to
detect possible fraud, waste, and abuse in the work of agency
employees whose duties directly affected the agency's internal
security. Department of the Navy, Naval Audit Service,
Southeast Region and NFFE , 46 FLRA 512, (1992).
Investigative Technicians at a prison were determined to be in
the bargaining unit because only 20% of their time was spent in
investigating staff misconduct or audits. Bureau of Prisons,
McCreary, and AFGE, 63 FLRA 153, (2009).
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Determinations of exclusions are
based on the duties actually
performed, NOT on the position
description, series, grade, or title.
NOT based on what the Agency
thinks they might do in the future.
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Locals are seeing members being dropped
from their membership lists.
These are due to AGENCY errors, not Union
errors.
Remedies must be sought through the Agency.
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5 USC 7115 -- Allotments to representatives – If an
agency has received from an employee in an
appropriate unit a written assignment which
authorizes the agency to deduct from the pay of
the employee amounts for the payment of regular
and periodic dues of the exclusive representative
of the unit, the agency shall honor the assignment
and make an appropriate allotment pursuant to the
assignment. Any such allotment shall be made at
no cost to the exclusive representative or the
employee. Except as provided under subsection
(b) of this section, any such assignment may not
be revoked for a period of 1 year.
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Article 1 – Recognition and Unit Designation
Article 7 – Union Use of Official Facilities and
Services
Article 39 – Voluntary Allotment of Union Dues
Appendix B – USDA-NFFE MOU ond Dues
Withholding
Memorandum of Understanding – Dues
Allotments, February 7, 2008
Memorandum of Understanding -- Union Dues
Allotment Processing, February 12, 2009
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a. Management shall not change the status of
bargaining unit positions without first notifying the Union
with rationale for the change. The Union will notify
Management with rationale within 30 days if they
disagree with the change. If the parties are unable to
agree on the position’s bargaining unit status,
Management may file a petition to clarify unit with the
Federal Labor Relations Authority. The disputed
positions will remain in the bargaining unit until such
time as a decision is reached on the petition.
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b. The Union will notify management when it believes
the bargaining unit status of a position should be
changed prior to filing a petition with the FLRA. If the
parties are unable to agree the Union may file a petition.
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List of Employees: Upon request the Forest
Service agrees to furnish to the Union, at the
appropriate level, usually not more than
quarterly, an up-to-date list of employees in the
organizational unit showing name, position,
title, grade, and step, Bargaining Unit Status
code (BUS), Fair Labor Standards Act code,
and official duty station. Additional information
will be furnished upon request on a case-bycase basis in compliance with the Privacy Act
and case law.
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Any member of a bargaining unit may make voluntary
allotment of dues, in accordance with USDA-NFFE MOU.
If USDA-NFFE agreement expires or is not renegotiated, the
Parties agree that the voluntary allotment of dues will
continue until a new Agreement between the USDA and
NFFE is negotiated.
When an employee changes from one Local to another,
Form AD-356, Dues Change Between Locals Within a
National Labor Organization, must be completed.
The gaining unit should process the Form AD-356 for employees
transferring to an organized unit.
 The losing unit should process Form AD-356A, Cancellation of
Withholding of Dues to Labor Organizations and Associations of
Supervisors or Managers, for employees transferring to an
unorganized unit or to a unit where the employee is no longer a
member of the bargaining unit (i.e., professional employee to
nonprofessional bargaining unit).
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Agreement to withhold dues
Procedures for submitting SF-1187
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Employee info, including SSN
Signature of authorized union official
Process within 5 days of receipt
Send copy to NFFE Headquarters
Dues remittance reports sent to NFFE HQ
Dues may be set at one amount for whole Local, or
individually. Changes may be made twice a year.
Cancellation of dues withholding will only be
processed once a year. All forms must be in by
August 15.
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“Get a List”
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Request from your LRA (UNIONCM5 for your unit),
per Article 7.
FSC Secretary-Treasurer gets one quarterly and can
provide you with the information.
Review list to determine if people’s codes are
correct.
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Pay special attention to be sure that union members
have not had their codes changed.
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Organization Codes: LV2, LV3, LV4, LV5
Name, PP-Ser-Gr-Stp, Title
City, St
BUS = Bargaining Unit Status Code
Sup = Supervisory Code
FLSA = Fair Labor Standards Act
Local = Local number
Dues = Dues amount the employee is paying
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Lv2 = Region, Station, Dep. Area in WO, or
LE&I
Lv3 = Next sublevel (often Forest)
Lv4 = Next sublevel (often District)
Lv5 = Next sublevel….
Many of the org codes can be found on HRM
website.
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0634 or 2009 -- Currently in the Forest Service
NFFE Professional or Non-professional
Bargaining Unit
7777 – Not in a bargaining unit, but eligible to be
in one.
8888 – Not eligible to be in a bargaining unit.
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Supervisors, managers, confidential, personnel work…
Any other – Represented by another bargaining
unit.
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2 and 4 -- Supervisor or Manager , Position
meets the definition of Supervisor in 5 U.S.C.
7103(a)(10).
5 -- Management Official (CSRA) Position
meets the definition of Management Official in
5 U.S.C. 7103(a)(11), but is not a supervisor
6 -- Leader in wage system or one-grade
interval work.
7 -- Team Leader in two-grade interval work.
8 -- All Other Positions
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Fair Labor Standards Act
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E = Exempt
N = Non-exempt
NOTE: FLSA status has nothing to do with
bargaining unit status.
Union Local
Union Dues
Date (not all members have dates)
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Red Flag – BUScode is 8888 and Supervisory
code is 8.
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This combination should only occur if someone meets the
exemptions for
 Confidential
 Personnel work
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Audit/Investigation
National Security
Other common issues
Wrong BUS code for Pros/Non-Pros
 Wrong BUS code for temporary employees
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Errors often occur when an employee has a
change in status (promotion, change in benefits,
detail, etc.)
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From Appendix A in Master Agreement*
Professionals
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INCLUDED: All professional employees of the Shasta Trinity
National Forest.
EXCLUDED: All management officials, nonprofessional
employees, supervisors, 30 day special need employees, and
employees described in 5 U.S.C. §7112(b)(2), (3), (4), (6) and
(7).
Non-Professionals
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INCLUDED: All nonprofessional employees of the Shasta
Trinity National Forest.
EXCLUDED: All management officials, professional employees,
supervisors, 30 day special need employees, and employees
described in 5 U.S.C. §7112(b)(2), (3), (4), (6) and (7).
*Note: Appendix A is just for reference. FLRA is the keeper of the
Certification. Updates are posted on the HRM website.
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Was the employee a dues-paying member who
has been dropped?
Grievance
 ULP
 MAY have to go to Clarification of Unit petition.
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Is the BUScode wrong, but not a dues payer?
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Grievance
Clarification of Unit Petition
Appeal process really depends on the
circumstances.
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What is an unfair labor practice (ULP)?
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A violation of 5 USC 71.
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Primary ULP related to this issue is the failure of
the Agency to withhold dues for a bargaining unit
employee who has requested dues allotments
In filing ULP, Union alleges violation of 5 USC
7116(a)(1) “to interfere with, restrain, or coerce
any employee in the exercise by the employee of
any right under this chapter”
7116 (a)(8) “to otherwise fail or refuse to comply
with any provision of this chapter” which includes
failing to comply with 5 USC 7115.
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"grievance" means any complaint-(A)
by any employee concerning any matter
relating to the employment of the employee;
 (B)
by any labor organization concerning any
matter relating to the employment of any employee; or
 (C)
by any employee, labor organization, or
agency concerning-
 (i)
the effect or interpretation, or a claim of breach, of
a collective bargaining agreement; or
 (ii) any claimed violation, misinterpretation, or
misapplication of any law, rule, or regulation affecting
conditions of employment;
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Violation of Article 1 – Failing to notify union
prior to changing bargaining unit status of a
position
Violation of Article 7 – Refusal to provide list
Violation of Article 39/Appendix B – Failure of
the Agency to withhold dues for a bargaining
unit employee who has requested dues
allotments
Violation of 5 USC 7115 -- the failure of the
Agency to withhold dues for a bargaining unit
employee who has requested dues allotments
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Ask the employee if they submitted an SF1188.
Ask the employee if they are currently in a
supervisory/managerial position
(detail/temporary promotion/temp supervision)
Determine what the employee’s current
BUScode is.
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Options:
If BUScode was changed (to 8888 or 7777),
and you believe it is wrong
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Grievance alleging violation of Article 1, because you
weren’t notified of change.
ULP for failing to withhold dues
Notify management of the wrong BUScode, per
Article 1, and ask them to correct.
If BUScode was not changed and is 0634
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Grievance alleging violation of Article 39/Appendix B
ULP for failing to withhold dues.
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Correct the BUScode
Reinstate dues withholding
Pay back dues
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HOWEVER, the Comptroller General has ruled that
the Agency can, and should, bill the employee for the
cost.
Reimburse Local for the IAMAW $10
reinstatement fee
Posting regarding who is in the bargaining unit
Training for employee(s) who made error(s)
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Find out if the employee is currently
supervising or a manager
Try to find out when the BUScode was
changed.
Options to resolve:
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File grievance alleging that BUScode was changed
without notifying the Union.
Notify management, per Article 1, that the Union
believes the employee is improperly excluded from
the bargaining unit.
Get the employee to join the Union and file an SF1187.
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Occasionally – The Union and management
will disagree about whether a position is in or
out of the bargaining unit
Most often:
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Confidential employees
Managerial employees
Occasional
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Supervisors
Personnelists
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Union Agreed to:
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Maintain a current list of Local union contact names,
Local Number, and dues amount and provide the list
and any updates to the LR Branch Chief quarterly
Original SF-1187’s will be sent hard copy to HCM,
Pay Branch.
SF-1187’s (Dues Allotment Form) will be submitted
with each block completed with accurate and legible
information.
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Process when BUS Code is not 0634 for an
employee who has submitted an SF-1187:
Pay will submit to Classification within 2 working
days*
Classification will review code within 10 days and
determine if:
a. It is a simple coding error*
b. The PD was miscoded and must be corrected*, or
c. The PD is correctly coded and is not in the bargaining
unit.*
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For (a) and (b) above, Pay will then process the
SF-1187 within 2 working days, if the correct BUS
code is 0634.
* Local Union will be notified at each of these steps.
New
SF-1187
Is it
legible?
No
Is BUS Code
0634 or 2009?
Pay returns SF-1187
to Union Local
No
Refer to Class. within 2 days
and notify the Union Local
Yes
Pay Processes 1187
within 2 days and
sends copy to NFFE HQ
Yes
No
Within 10 days, Class.
corrects BUScode in NFC
database and notifies Pay
and Union Local
Within 10 days, Class.
determines what the correct
BUS code should be.
Is correct BUScode 0634?
Yes
Classification
notifies Pay and
Union Local
Is BUScode on PD
cover sheet = 0634?
No
Classification
notifies Pay and
Union Local
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First– Notify management in accordance with
Article 1.
If unable to resolve, file FLRA Form 21
(Petition) with the FLRA Region that serves
your unit. A copy must be sent to the Agency,
as well.
FLRA will notify Parties and request further
information and designation of representatives.
A conference call will be scheduled to attempt
to work out the issues.
If not resolved, a hearing will be held.
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Annual dues increases – By Pay Period 23,
Union will notify HRM of the annual dues
change, so they are effective in PP 1.
When new Locals are chartered, Union will
provide management with information about
the new Local, including dues amounts and
Local number.
When Union consolidates Locals, Union will
provide information about which Locals are
combining, the remaining Local number, and
the members who are affected.
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Agency reorganizes and combines two units, or
splits a unit apart.
Who determines who is still represented by the
Union and who is not?
Examples:
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ISO
CIO
Consolidation of Beaverhead and Deerlodge
National Forests
Stove-piping of Law Enforcement and Investigations
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“Accretion” used when two organizational units are
combined, generally one organized and one
unorganized.
Consolidation of Beaverhead and Deerlodge NFs
 Consolidation of Rocky Mountain and Intermountain
Stations
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Often, if NFFE represented 50% or more of the
employees in the new unit, no election is needed
to represent the whole new organization.
If NFFE represented less than 50%, or another
union also represented some of the employees, an
election may be run.
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“Successor” used when an organized unit is
changed sufficiently that it is no longer the same
organization or a unit is separated from an
organized unit.
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Movement of Enterprise Teams from Region 5 to National
Region 4 RO – Originally listed the locations where the
employees were located.
Tahoe Basin Management Unit – Originally most
employees who made up this unit came from the
Eldorado.
Name change for Carribean NF to El Yunque NF.
Creation of national LE&I organization
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To organize a new unit, the Union must:
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Get a list from management of all employees in the
unit to be organized.
Get a showing of interest from at least 30% of the
employees.
Submit forms
Wrangle with management
Election!
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Organize a currently unorganized Forest, Station, or
other unit.
Add professionals to a unit that doesn’t currently
include professionals.
Add nonprofessionals to a unit that doesn’t currently
include nonprofessionals.
Add temporaries to a unit that currently only represents
permanent employees.
Other?
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Article 7 -- If the unit is already partially
organized, you can get a list under the
provisions of Article 7.
May get a list by asking HCM, or Melissa
Baumann gets a list on a quarterly basis.
Or – start collecting SF-1187s and make a list
of who you think is in the potential BU, and file
petition with FLRA. Agency will need to
provide list to FLRA of who they believe is in
BU.
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To have FLRA hold an election, you must have a
“showing of interest” from 30% or more of the
eligible employees….best to get 40-50%.
Can gather signatures on either on a petition or on
an SF-1187 form. (Highly recommend SF-1187.)
Only Union and FLRA can see lists/SF-1187s.
SF-1187 forms are not submitted to management
until election is held and unit is certified.
All organizing of new units must be done on your
own time, and the employees’ own time.
Use of the Forest Service computer system is NOT
authorized for organizing a new unit.
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Use Petition Form – FLRA Form 21
Be careful describing the unit, and use as
broad language as possible.
“All professional employees of X Forest.”
 NOT “All professional employees of X Forest in
Location 1, Location 2, Location 3, and Location 4.
 NOT “All permanent nonprofessional employees of X
Forest.” unless you really only intend to organize the
permanent employees.
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At times, when the petition is submitted,
management may disagree as to who is in the
bargaining unit or what is an appropriate unit.
Looks a lot like wrangling with management
over individual positions in a unit that is already
organized.
FLRA may schedule hearing to determine
appropriateness and who is eligible and who is
not.
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Once all disputes about the appropriate unit and
who is in the unit are resolved, an election is held.
Election held in person or by mail.
Generally, employees have option of voting to be
represented by NFFE or not. Occasionally, there
may be situations where another union is also on
the ballot.
After election, ballots are counted by FLRA.
If majority of employees vote to be represented,
then after 5 days, the FLRA issues a certification of
the unit if no protests have been filed.
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FLRA Regional Director makes initial
determination of appropriate unit and
bargaining unit status.
A Petition for Review may be filed with the full
Federal Labor Relations Authority (FLRA).
Once the FLRA has made a determination,
there is NO APPEAL PROCESS.
The Authority has the final word.

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