Is the Description of the Bargaining Unit Accurate?

Bargaining unit descriptions often become outdated. These are some things both parties must consider when this happens.

Many times, in preparing for collective bargaining it becomes clear that the description of the bargaining unit in the collective bargaining agreement is not correct. The parties have let it become outdated.

The federal government has a penchant for organizational changes. Often these reorganizations change the nature or scope of the bargaining unit. When these changes take place both the union and management should look at whether they change the bargaining unit, but they frequently don’t make the effort. Simply changing the language in the unit description in a CBA does not legally change the scope of the bargaining unit. A petition must be filed with the FLRA to have a legally binding unit description. 

A petition should be filed with the FLRA at any time either party believes the bargaining unit certification no longer accurately describes the bargaining unit. Such petitions would seek to clarify the status of positions in the agency with respect to their inclusion in the bargaining unit, either because of changes in duties that have taken place since the date of the election or because the position is newly created. The FLRA will investigate or hold a hearing to take evidence on these positions, and will look at the same types of factors previously discussed in the election eligibility section re: supervisors, confidential employees, etc.

As noted above, upon being appointed, high level supervisors and managers in the federal government secretly pledge to reorganize something under their control to leave a new and improved legacy from the last person in the job. Sometimes the changes they make substantially alter the structure or organization of the agency, which then calls into question the continued viability of the bargaining unit.

Congress occasionally passes laws which have a similar effect. Whatever the source of these reorganizations, either the agency or the union may believe that the organizational changes have taken employees out of the bargaining unit, added some in, or so muddied the waters that no one knows for sure what union, if any, represents the employees or what the composition of the unit is.  

When these changes arise, it is a good idea to begin looking at the effects on the unit early on, and perhaps to involve the FLRA in discussions of what recourses and possible outcomes there may be, as well as how to narrow the areas of dispute. However, if possible, it is best to wait until most all changes, or changes affecting a substantial and representative number of the employees involved, have occurred before filing any petition. The FLRA normally prefers to decide the effects of reorganizations after they have taken place or when a phase-in plan is imminent and definite. 

In looking at the positions affected by the reorganization the FLRA will look at appropriateness of unit issues to determine if the positions affected by the reorganization a should be considered as part of the appropriate unit.

An appropriate unit is one which conforms to the agency’s organizational lines in a logical way, so that the employees share common interests, personnel policies, working conditions, job functions and missions, and supervisory hierarchy. In other words, if a union were to represent certain employees, it would make sense to negotiate a contract or other issues relative to these employees, to the exclusion of other employees of the agency.

The FLRA must be satisfied that the unit, or group of employees among, is appropriate for purposes of collective bargaining. There may be more than one such “appropriate” unit – e.g., a district-wide, region-wide, or nationwide unit – and the unit which is the subject of the petition need only be an appropriate unit, not the most appropriate one.  

Some of the outcomes of a petition asking the FLRA to decide the continued appropriateness of the unit are:

  1. The Regional Director decides that the character and scope of the unit haven’t changed significantly, and he/she dismisses the petition.
  2. The FLRA decides that a gaining agency (or component of an agency) is the successor employer of a group of employees transferred to it, and that the union which formerly represented the employees continues to represent them because the transferees represent a majority of the employees in the new unit. The FLRA will also look to see if the mission, duties, functions, management structure, locations, and working conditions in the gaining entity have also remained substantially similar.
  3. A bargaining unit, part of a bargaining unit, previously unrepresented employees, or a group of newly created positions not covered by the original unit description, may be “accreted to” (commingled with or functionally, physically, or operationally integrated into) another existing bargaining unit, which remains appropriate with the addition of the new employees. Providing that the transferred employees do not constitute a majority of employees in the combined unit, the exclusive representative in the gaining unit would then represent the transferred employees along with the rest of the employees in its unit.
  4. Employees may be transferred to a component and integrally combined with a much larger group of unrepresented employees, and the FLRA may decide that the certified bargaining unit is no longer appropriate, or that the union can’t be shown to represent a majority of the employees in the new unit, and therefore the union is not its exclusive representative.
  5. One or more units of employees may be combined to form a new organization or unit, and the FLRA may decide that the new unit is appropriate and order an election to decide which of the unions formerly representing the employees should represent the new unit. 
  6. One or more units of employees are combined, but the FLRA finds that substantial portions of these units can’t be identified within the new unit, which also includes formerly unrepresented employees, and the FLRA decides that no union exclusively represents the employees and that an election is not warranted.

Please be aware that since reorganizations are often quite complex and are rarely alike, the FLRA continues to develop case law to address the range of circumstances which they present. It is a good idea to consult with the FLRA and to do research into case law on these subjects before taking a final position on what effects a reorganization has had on your bargaining unit.

It is best to continually look at the effect of changes in the organization and not put off any clarification petitions until the eve of bargaining a new collective bargaining agreement.

About the Author

Joe Swerdzewski, former General Counsel of the FLRA & owner of JSA LLC is the author of The Essential Guide to Federal Labor Relations, A Guide to Successful Federal Sector Collective Bargaining, etc. For more info on JSA’s services, email or subscribe to JSA’s newsletter.