5 U.S.C. § 7112 — Determination of appropriate units for

Page 863 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 7112 shall be placed on the ballot of any election under such subsection (b) with respect to the pe- tition. (d) The Authority shall determine who is eligi- ble to vote in any election under this section and shall establish rules governing any such election, which shall include rules allowing em- ployees eligible to vote the opportunity to choose— (1) from labor organizations on the ballot, that labor organization which the employees wish to have represent them; or (2) not to be represented by a labor organiza- tion. In any election in which no choice on the ballot receives a majority of the votes cast, a runoff election shall be conducted between the two choices receiving the highest number of votes. A labor organization which receives the majority of the votes cast in an election shall be certified by the Authority as the exclusive representa- tive. (e) A labor organization seeking exclusive rec- ognition shall submit to the Authority and the agency involved a roster of its officers and rep- resentatives, a copy of its constitution and by- laws, and a statement of its objectives. (f) Exclusive recognition shall not be accorded to a labor organization— (1) if the Authority determines that the labor organization is subject to corrupt influ- ences or influences opposed to democratic principles; (2) in the case of a petition filed pursuant to subsection (b)(1)(A) of this section, if there is not credible evidence that at least 30 percent of the employees in the unit specified in the petition wish to be represented for the purpose of collective bargaining by the labor organiza- tion seeking exclusive recognition; (3) if there is then in effect a lawful written collective bargaining agreement between the agency involved and an exclusive representa- tive (other than the labor organization seek- ing exclusive recognition) covering any em- ployees included in the unit specified in the petition, unless— (A) the collective bargaining agreement has been in effect for more than 3 years, or (B) the petition for exclusive recognition is filed not more than 105 days and not less than 60 days before the expiration date of the collective bargaining agreement; or (4) if the Authority has, within the previous 12 calendar months, conducted a secret ballot election for the unit described in any petition under this section and in such election a ma- jority of the employees voting chose a labor organization for certification as the unit’s ex- clusive representative. (g) Nothing in this section shall be construed to prohibit the waiving of hearings by stipula- tion for the purpose of a consent election in con- formity with regulations and rules or decisions of the Authority. (Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1199.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 13, 1978, see sec- tion 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title. § 7112. Determination of appropriate units for labor organization representation (a) The Authority shall determine the appro- priateness of any unit. The Authority shall de- termine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appro- priate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appro- priate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will pro- mote effective dealings with, and efficiency of the operations of the agency involved. (b) A unit shall not be determined to be appro- priate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be deter- mined to be appropriate if it includes— (1) except as provided under section 7135(a)(2) of this title, any management official or su- pervisor; (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 chapter; (5) both professional employees and other employees, unless a majority of the profes- sional 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 inves- tigation or audit functions relating to the work of individuals employed by an agency whose duties directly affect the internal secu- rity of the agency, 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 admin- istering 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 which are in an agency and for which a labor organization is the exclu- sive representative may, upon petition by the agency 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. The Authority shall certify the labor organization as the exclusive rep- resentative of the new larger unit. (Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1200; amended Pub. L. 102–378, § 2(54), Oct. 2, 1992, 106 Stat. 1354.) Page 864 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 7113 Editorial Notes AMENDMENTS 1992—Subsec. (a). Pub. L. 102–378 struck out ‘‘(1)’’ after subsec. (a) designation. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 13, 1978, see sec- tion 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title. § 7113. National consultation rights (a) If, in connection with any agency, no labor organization has been accorded exclusive rec- ognition on an agency basis, a labor organiza- tion which is the exclusive representative of a substantial number of the employees of the agency, as determined in accordance with cri- teria prescribed by the Authority, shall be granted national consultation rights by the agency. National consultation rights shall ter- minate 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 con- sultation rights shall be subject to determina- tion by the Authority. (b)(1) Any labor organization having national consultation rights in connection with any agency under subsection (a) of this section shall— (A) be informed of any substantive change in conditions of employment proposed by the agency, and (B) be permitted reasonable time to present its views and recommendations regarding the changes. (2) If any views or recommendations are pre- sented under paragraph (1) of this subsection to an agency by any labor organization— (A) the agency shall consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented; and (B) the agency shall provide the labor orga- nization a written statement of the reasons for taking the final action. (c) Nothing in this section shall be construed to limit the right of any agency or exclusive representative to engage in collective bar- gaining. (Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1201; amended Pub. L. 102–378, § 2(55), Oct. 2, 1992, 106 Stat. 1354.) Editorial Notes AMENDMENTS 1992—Subsec. (a). Pub. L. 102–378 struck out ‘‘(1)’’ after subsec. (a) designation. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 13, 1978, see sec- tion 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title. § 7114. Representation rights and duties (a)(1) A labor organization which has been ac- corded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and nego- tiate collective bargaining agreements covering, all employees in the unit. An exclusive rep- resentative is responsible for representing the interests of all employees in the unit it rep- resents without discrimination and without re- gard to labor organization membership. (2) An exclusive representative of an appro- priate unit in an agency shall be given the op- portunity to be represented at— (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their represent- atives concerning any grievance or any per- sonnel policy or practices or other general condition of employment; or (B) any examination of an employee in the unit by a representative of the agency in con- nection with an investigation if— (i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and (ii) the employee requests representation. (3) Each agency shall annually inform its em- ployees of their rights under paragraph (2)(B) of this subsection. (4) Any agency and any exclusive representa- tive in any appropriate unit in the agency, through appropriate representatives, shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement. In addition, the agency and the exclusive rep- resentative may determine appropriate tech- niques, consistent with the provisions of section 7119 of this title, to assist in any negotiation. (5) The rights of an exclusive representative under the provisions of this subsection shall not be construed to preclude an employee from— (A) being represented by an attorney or other representative, other than the exclusive representative, of the employee’s own choos- ing in any grievance or appeal action; or (B) exercising grievance or appellate rights established by law, rule, or regulation; except in the case of grievance or appeal proce- dures negotiated under this chapter. (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation— (1) to approach the negotiations with a sin- cere 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 em- ployment; (3) to meet at reasonable times and conven- ient places as frequently as may be necessary, and to avoid unnecessary delays; (4) in the case of an agency, to furnish to the exclusive representative involved, or its au- thorized representative, upon request and, to the extent not prohibited by law, data— (A) which is normally maintained by the agency in the regular course of business; (B) which is reasonably available and nec- essary for full and proper discussion, under- standing, and negotiation of subjects within the scope of collective bargaining; and