5 U.S.C. § 7118 — Prevention of unfair labor practices

Page 867 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 7118 represents an appropriate unit including not less than a majority of the employees in the issuing agency or primary national subdivision, as the case may be, to whom the rule or regulation is applicable. (b)(1) In any case of collective bargaining in which an exclusive representative alleges that no compelling need exists for any rule or regula- tion referred to in subsection (a)(3) of this sec- tion which is then in effect and which governs any matter at issue in such collective bar- gaining, the Authority shall determine under paragraph (2) of this subsection, in accordance with regulations prescribed by the Authority, whether such a compelling need exists. (2) For the purpose of this section, a compel- ling need shall be determined not to exist for any rule or regulation only if— (A) the agency, or primary national subdivi- sion, as the case may be, which issued the rule or regulation informs the Authority in writing that a compelling need for the rule or regula- tion does not exist; or (B) the Authority determines that a compel- ling need for a rule or regulation does not exist. (3) A hearing may be held, in the discretion of the Authority, before a determination is made under this subsection. If a hearing is held, it shall be expedited to the extent practicable and shall not include the General Counsel as a party. (4) The agency, or primary national subdivi- sion, as the case may be, which issued the rule or regulation shall be a necessary party at any hearing under this subsection. (c)(1) Except in any case to which subsection (b) of this section applies, if an agency involved in collective bargaining with an exclusive rep- resentative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allega- tion to the Authority in accordance with the provisions of this subsection. (2) The exclusive representative may, on or be- fore the 15th day after the date on which the agency first makes the allegation referred to in paragraph (1) of this subsection, institute an ap- peal under this subsection by— (A) filing a petition with the Authority; and (B) furnishing a copy of the petition to the head of the agency. (3) On or before the 30th day after the date of the receipt by the head of the agency of the copy of the petition under paragraph (2)(B) of this subsection, the agency shall— (A) file with the Authority a statement— (i) withdrawing the allegation; or (ii) setting forth in full its reasons sup- porting the allegation; and (B) furnish a copy of such statement to the exclusive representative. (4) On or before the 15th day after the date of the receipt by the exclusive representative of a copy of a statement under paragraph (3)(B) of this subsection, the exclusive representative shall file with the Authority its response to the statement. (5) A hearing may be held, in the discretion of the Authority, before a determination is made under this subsection. If a hearing is held, it shall not include the General Counsel as a party. (6) The Authority shall expedite proceedings under this subsection to the extent practicable and shall issue to the exclusive representative and to the agency a written decision on the alle- gation and specific reasons therefor at the ear- liest practicable date. (d)(1) A labor organization which is the exclu- sive representative of a substantial number of employees, determined in accordance with cri- teria prescribed by the Authority, shall be granted consultation rights by any agency with respect to any Government-wide rule or regula- tion issued by the agency effecting any sub- stantive change in any condition of employ- ment. Such consultation rights shall terminate when the labor organization no longer meets the criteria prescribed by the Authority. Any issue relating to a labor organization’s eligibility for, or continuation of, such consultation rights shall be subject to determination by the Author- ity. (2) A labor organization having consultation rights under paragraph (1) of this subsection shall— (A) be informed of any substantive change in conditions of employment proposed by the agency, and (B) shall be permitted reasonable time to present its views and recommendations re- garding the changes. (3) If any views or recommendations are pre- sented under paragraph (2) 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. (Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1205.) 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. PARTIAL SUSPENSION OF FEDERAL SERVICE LABOR- MANAGEMENT RELATIONS Subsec. (b) of this section suspended with regard to any regulation governing the implementation by the United States Forces, and subsec. (c) of this section suspended with respect to any matter proposed for bar- gaining which would substantially impair the imple- mentation by the United States Forces, of any treaty or agreement, including any minutes or understandings thereto, between the United States and the Govern- ment of the host nation, see section 1(b), (c) of Ex. Ord. No. 12391, Nov. 4, 1982, 47 F.R. 50457, set out as a note under section 7103 of this title. § 7118. Prevention of unfair labor practices (a)(1) If any agency or labor organization is charged by any person with having engaged in or engaging in an unfair labor practice, the Gen- eral Counsel shall investigate the charge and Page 868 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 7119 may issue and cause to be served upon the agen- cy or labor organization a complaint. In any case in which the General Counsel does not issue a complaint because the charge fails to state an unfair labor practice, the General Counsel shall provide the person making the charge a written statement of the reasons for not issuing a com- plaint. (2) Any complaint under paragraph (1) of this subsection shall contain a notice— (A) of the charge; (B) that a hearing will be held before the Au- thority (or any member thereof or before an individual employed by the authority and des- ignated for such purpose); and (C) of the time and place fixed for the hear- ing. (3) The labor organization or agency involved shall have the right to file an answer to the original and any amended complaint and to ap- pear in person or otherwise and give testimony at the time and place fixed in the complaint for the hearing. (4)(A) Except as provided in subparagraph (B) of this paragraph, no complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority. (B) If the General Counsel determines that the person filing any charge was prevented from fil- ing the charge during the 6-month period re- ferred to in subparagraph (A) of this paragraph by reason of— (i) any failure of the agency or labor organi- zation against which the charge is made to perform a duty owed to the person, or (ii) any concealment which prevented dis- covery of the alleged unfair labor practice dur- ing the 6-month period, the General Counsel may issue a complaint based on the charge if the charge was filed dur- ing the 6-month period beginning on the day of the discovery by the person of the alleged unfair labor practice. (5) The General Counsel may prescribe regula- tions providing for informal methods by which the alleged unfair labor practice may be re- solved prior to the issuance of a complaint. (6) The Authority (or any member thereof or any individual employed by the Authority and designated for such purpose) shall conduct a hearing on the complaint not earlier than 5 days after the date on which the complaint is served. In the discretion of the individual or individuals conducting the hearing, any person involved may be allowed to intervene in the hearing and to present testimony. Any such hearing shall, to the extent practicable, be conducted in accord- ance with the provisions of subchapter II of chapter 5 of this title, except that the parties shall not be bound by rules of evidence, whether statutory, common law, or adopted by a court. A transcript shall be kept of the hearing. After such a hearing the Authority, in its discretion, may upon notice receive further evidence or hear argument. (7) If the Authority (or any member thereof or any individual employed by the Authority and designated for such purpose) determines after any hearing on a complaint under paragraph (5) of this subsection that the preponderance of the evidence received demonstrates that the agency or labor organization named in the complaint has engaged in or is engaging in an unfair labor practice, then the individual or individuals con- ducting the hearing shall state in writing their findings of fact and shall issue and cause to be served on the agency or labor organization an order— (A) to cease and desist from any such unfair labor practice in which the agency or labor or- ganization is engaged; (B) requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given ret- roactive effect; (C) requiring reinstatement of an employee with backpay in accordance with section 5596 of this title; or (D) including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other action as will carry out the purpose of this chapter. If any such order requires reinstatement of an employee with backpay, backpay may be re- quired of the agency (as provided in section 5596 of this title) or of the labor organization, as the case may be, which is found to have engaged in the unfair labor practice involved. (8) If the individual or individuals conducting the hearing determine that the preponderance of the evidence received fails to demonstrate that the agency or labor organization named in the complaint has engaged in or is engaging in an unfair labor practice, the individual or individ- uals shall state in writing their findings of fact and shall issue an order dismissing the com- plaint. (b) In connection with any matter before the Authority in any proceeding under this section, the Authority may request, in accordance with the provisions of section 7105(i) of this title, from the Director of the Office of Personnel Management an advisory opinion concerning the proper interpretation of rules, regulations, or other policy directives issued by the Office of Personnel Management. (Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1207.) 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. § 7119. Negotiation impasses; Federal Service Im- passes Panel (a) The Federal Mediation and Conciliation Service shall provide services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses. The Service shall determine under what circumstances and in what manner it shall provide services and as- sistance. (b) If voluntary arrangements, including the services of the Federal Mediation and Concilia- tion Service or any other third-party mediation, fail to resolve a negotiation impasse—