Guidance the Duty to Bargain Over Programs Establishing Employee Involvement and Statutory Obligations When Selecting Employees for Work Groups

PART 1 - RIGHTS AND OBLIGATIONS UNDER THE STATUTE

SECTION 1 - OFFICE OF THE GENERAL COUNSEL'S POSITION ON THE DUTY TO BARGAIN OVER THE ESTABLISHMENT OF PROGRAMS CREATING WORK GROUPS WHICH INVOLVE EMPLOYEES IN REINVENTING THE GOVERNMENT

Background

Programs which involve employees on work groups or task forces to improve the manner in which an agency performs its functions and mission have been in existence in the Federal Government prior to the issuance of Executive Order 12871. The Office of the General Counsel and the Authority have been called upon in a few instances where the parties have had a legal dispute to determine, based on the totality of the circumstances, whether there was a duty to bargain over the creation of certain programs and the extent of any duty that existed. With the mandate in Executive Order 12871 to "involve employees and their union representatives as full partners with management representatives to identify problems and craft solutions to better serve the agency's customers and mission", agencies and unions covered by the Statute have raised issues concerning the obligations under the Statute to negotiate over the creation of programs establishing employee involvement.

Some agencies and unions which have embraced the principles in the Executive Order have created structures consistent with the mandate in the Executive Order to involve employees and their union representatives in the decision-making process in order to achieve the "National Performance Review's Government reform objectives." These jointly developed programs, as an example, involve such matters as: how the agency will perform its functions and mission; the structure which will be utilized; the methods, means and technology by which the work will be accomplished; the designation of which employees, by number, type and grade, will perform the work; the manner by which performance and results will be measured; and the method for training employees to perform these functions. In those situations, where the employees through their elected representative and the agency are working together cooperatively and collaboratively under partnership principles, there usually are no major issues concerning the respective rights and obligations of the parties. Thus, the parties are intent on obtaining the best solutions and not focusing on rights and obligations under the Statute.

In other situations, some parties have declined to collaboratively establish such programs and thus some agencies have unilaterally established programs which similarly provide for employees to become involved in work groups which are charged with making recommendations or decisions on how the agency will perform its functions and mission. In these situations, where the parties have not utilized a collaborative or partnership approach to jointly design their program, there is a need for both parties to understand their respective rights and obligations under the Statute. In view of the number of work groups being created in the Government, pursuant to the principles in the Executive Order, to reinvent the Government in accordance with the National Performance Review (NPR) goals and objectives, I take this opportunity to state my views on the duty to bargain over the establishment of these programs.

Duty To Bargain Over Establishment of Programs Providing For Employee Involvement In Reinvention and NPR Initiatives

Role of the Office of the General Counsel in Processing Unfair Labor Practice Charges

We initially emphasize that when an unfair labor practice charge is filed the role of the Office of the General Counsel is limited to determining whether an unfair labor practice under the Statute has been committed in the establishment and implementation of these programs. In processing unfair labor practice charges concerning these programs, the Office of the General Counsel does not make determinations as to how the parties should have established such programs and work groups to facilitate and accomplish their reinventing process. Rather, the parties have determined the manner in which they will deal with each other, whether and how they will embrace and implement employee involvement principles, and whether and how they will utilize work groups.

Programs Providing For Discussions Between Management And Employees Of Matters Which Under The Statute Should Only Be Discussed With The Exclusive Representative Of The Bargaining Unit; i.e., Matters Which Are Negotiable Under The Statute - Cannot Be Implemented Absent The Exclusive Representative's Consent And Agreement

We begin by reaffirming the guiding principle adopted by the Authority in 1987 when the Authority affirmed the Administrative Law Judge's decision in Department of the Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, Hawaii, 29 FLRA No. 96, 29 FLRA 1236 (1987)(Pearl Harbor). That principle is that the establishment and implementation of a program which involves employees in discussions of matters which under the Statute should only be discussed with the exclusive representative of the bargaining unit; i.e., matters which are negotiable under the Statute - is a permissive subject of bargaining which cannot be implemented absent the exclusive representative's agreement.

In my view, and consistent with Pearl Harbor, an agency commits an unfair labor practice if it deals directly with unit employees over negotiable terms and conditions of employment.(1) Under the Statute, only the elected exclusive representative is authorized and required to represent all bargaining unit employees, whether or not dues paying union members, in matters which are within the scope of bargaining under the Statute. A union as exclusive representative is under no statutory obligation to negotiate with an agency over an agency's proposal to establish a program which provides for the agency to deal directly with unit employees over negotiable conditions of employment. This type of program constitutes a permissive subject of bargaining because it requires the exclusive representative to give up its statutory right to be the sole representative for the unit on negotiable matters. Such a program cannot lawfully be implemented without the union's consent and agreement.(2) Thus, an agency may not implement such a program without the union's agreement and a union is under no statutory obligation to even engage in negotiations over such a permissive subject of bargaining. This differs from situations involving mandatory subjects of bargaining (such as substantively negotiable matters and impact and implementation matters within the scope of bargaining), where a labor organization's failure to request negotiations after reasonable notice of an agency decision to act enables an agency to lawfully implement the matter without bargaining.

Programs Providing For Discussions Between Management And Employees Of Matters Which Under The Statute Are Not Required To Be Only Discussed With The Exclusive Representative of the Bargaining Unit; i.e., Matters Which Are Technical In Nature And Concern The Job Related Functions Of The Employees And Which Are Within Management's Rights Under The Statute - Can Be Implemented In the Same Manner That Other Management Rights Are Exercised

Agencies, however, also retain the authority, under the reserved management rights in section 7106(a) of the Statute, to obtain employee input without the exclusive representative's consent and agreement over matters which are technical in nature and concern the job related functions of the employees.(3) If the discussions concern problem solving and brainstorming over these job functions which do not expand to negotiable matters which must be bargained solely with the exclusive representative, an agency need not obtain the union's consent and agreement prior to implementation. Rather, the establishment of such a program should be treated no differently than the exercise of any other reserved nonnegotiable management right. As such, an agency remains required to give notice and fulfill its statutory bargaining obligations before establishment of this type of program - but the agency need not obtain union consent on the program itself before implementation, only the fulfillment of its impact and implementation statutory bargaining obligation.(4)

Thus, the determining issue in these situations is whether the discussions between the agency managers and the unit employees concern negotiable matters over which the agency is obligated to negotiate with the exclusive representative and thus constitutes an unlawful attempt to engage in collective bargaining directly with unit employees, or whether the discussions concern work related matters over which the agency has the right to obtain employee input, opinions and recommendations. The critical fact is not the name given to the program but rather - what do the employees and managers discuss with each other at the meetings under the program!

Example of Matters For Which Management Cannot Deal Directly With Unit Employees Based On The Facts in Pearl Harbor

In order to more fully distinguish between those matters over which an agency may not deal directly with unit employees absent the consent and agreement of the exclusive representative and those matters which are within management's reserved rights and subject only to the statutory bargaining obligation prior to implementation, I will review the facts in Pearl Harbor where the Authority found that the agency was required to obtain consent before instituting a program involving employees. In Pearl Harbor, the Authority adopted the Administrative Law Judge's findings and conclusions that the quality circle program at issue "considered and dealt with such matters related to employee training, establishing a lunch facility, the lack of hot/cold water drinking fountains and safety and awards."(5) The Authority specifically found that "the QCs envisioned discussions between employees and supervisors concerning negotiable matters."(6) Although the union had agreed to the initial establishment of such a program and thus authorized the direct dealing between management and the employees over subjects which otherwise would have been the exclusive role of the collective bargaining representative of the employees, the union had not agreed to the substantial modifications in the program's structure and operation as challenged in the unfair labor practice case.

Statutory Bargaining Obligations When Establishing a Program Which Does Not Encompass Direct Dealing With Unit Employees Over Negotiable Conditions of Employment

Based on the above discussion, and consistent with Pearl Harbor, I am of the view that an agency may obtain employee input without the union's consent and assign unit employees to work groups to make recommendations on work related matters that are not negotiable conditions of employment without the union's consent, as long as the agency has fulfilled its statutory bargaining obligation. The fact that the agency may rely upon the recommendations of unit employees in making decisions concerning the exercise of its reserved management rights does not transform the assignment of work aspect of the program to direct dealing with employees over negotiable conditions of employment. Only when the matters discussed are negotiable terms and conditions of employment do those discussions constitute an unlawful direct dealing with unit employees. Agencies must ensure that these negotiable matters (such as safety measures, procedures for details and promotions within the unit) do not become part of the work groups' discussions if the union has not agreed to the program.(7) As noted above, however, an agency must still give notice and fulfill its impact and implementation bargaining obligation prior to implementing even this type of program. Consistent with the principles in the Executive Order and in order to avoid disputes concerning whether the discussions are intended to encompass, or in fact concern, negotiable conditions of employment, jointly establishing such programs could serve to reduce disputes.

SECTION 2 - OFFICE OF THE GENERAL COUNSEL'S POSITION CONCERNING THE CRITERIA FOR SELECTION OF EMPLOYEES ON WORK GROUPS, THE CAPACITY IN WHICH THE EMPLOYEES WILL SERVE AND THE CONSEQUENCES WHICH FLOW FROM THESE DESIGNATIONS

Programs creating opportunities for employee involvement in reinvention initiatives may be jointly developed by labor and management under partnership principles or may be unilaterally developed by management and implemented after fulfilling the statutory impact and implementation bargaining obligation. Regardless of the method of development, the capacity in which the employees serve on the work groups under the program (i.e., whether the employees serve as union representatives or as employees assigned work by management) will have a direct impact on the criteria which lawfully can be utilized when selecting employees for the work groups and the treatment of those employees' performance while a member of the work group. Due to the significance of these issues in situations where the parties have developed a partnership to improve their relationship and to involve employees in decision-making to improve Government services, I will take this opportunity to restate my approach to these issues.

Role of the Office of the General Counsel in Processing Unfair Labor Practice Charges

We again begin the inquiry by emphasizing that when an unfair labor practice charge is filed the role of the Office of the General Counsel is limited to determining whether an unfair labor practice under the Statute has been committed. In processing unfair labor practice charges, I reiterate that the Office of the General Counsel does not give advice or guidance to the parties as to how they should have established task forces and work groups as part of their reinventing process. Rather, the parties have determined the manner, if any, in which they will embrace and implement employee involvement principles, and whether and how they will utilize work groups.

Statutory Requirements for Selection to Reinvention Work Groups

In my view, there is no requirement in the Statute that bargaining unit employees must be dues paying union members to be eligible to participate in work groups making recommendations or decisions to improve an agency's services. The determining factor as to whether union membership may lawfully be a criterium when making employee selections for participation in work groups is the capacity in which the employee will serve on the work group.

There are two basic, mutually exclusive options: an employee may serve either as a union representative or as an employee assigned to work. An employee cannot serve in both capacities while serving on a work group. I will now discuss the differences between serving as a union representative and serving under the assignment of work, the consequences which flow from each designated capacity and the rationale underlying those consequences.

Employees Serving as Union Representatives

Again, there is no requirement in the Statute that bargaining unit employees must be dues paying union members to be eligible to participate in work groups charged with making recommendations or decisions on ways to improve the services delivered by an agency. The parties, however, if they chose, may establish their employee involvement programs, such as work groups, so that the employees serving in such activities serve in the capacity as representatives of the union. Under these circumstances, the work groups function, in essence, as an extension of the collective bargaining relationship and are intended by the parties to create an alternative means of communicating between the union as the exclusive representative and the agency.

Union representatives may (but need not) be selected from only union members - If the parties structure their relationship in such a manner that bargaining unit employees serve as union representatives and in a representational capacity while participating in employee involvement activities, the union may (but is not required to) select its representatives only from dues paying members - just as it may select its representatives for other union representational activities, such as bargaining a contract and contract administration committees.(8) Thus, it is not an unfair labor practice for a union to select only dues paying union members for employee involvement activities and work groups when those employees are serving as a union representative. Nor is it an unfair labor practice for an agency to allow a union to make that selection. I reiterate, however, that there is no requirement in the Statute which requires the union to pick only members as representatives and no prohibition in the Statute precluding a union from selecting non-members as representatives.(9)

Of course, any recommendations emanating from these employees while serving as union representatives cannot discriminate against non-union members, just as contract clauses cannot discriminate against non-union members.(10) Rather, the employees serving as union representatives are under the same obligations as are all other union representatives when performing their representational functions.

Union representatives may not be disciplined for their performance as a representative of the union - If the parties elect to establish employee involvement activities so that the unit employees are participating as union representatives and in a representational capacity, the employees are considered to be involved in protected activities under the Statute. As such, they are charged with representing the interests of the bargaining unit as a whole, rather than their own personal interests. Similarly, as union representatives, they are engaged in protected activity and may not be discriminated against for any actions taken while serving in that capacity.(11) Just as a union representative may not be discriminated against, interfered with, restrained or coerced because of a position taken during a grievance meeting, an employee serving as a union representative on a reinvention work group cannot be discriminated against, interfered with, restrained or coerced because of an action taken while serving as a union representative on that work group. Thus, employees who serve as union representatives on employee involvement activities and work groups may not be subject to discriminatory discipline, performance actions or removal from the work group by management.

Union representatives may not be evaluated for their performance as a representative of the union - Similarly, other consequences flow from serving as a union representative while on a reinvention work group. Just as an employee representing a union in collective bargaining cannot be evaluated, either positively or negatively, based on how management rates the manner in which the employee performed the union representation function, the employee representatives on a reinvention work group may not have their employee involvement activities and work group functions taken into consideration when evaluating the employees' work performance.(12) The power of evaluation interferes with an employee's right to engage in protected activity and serve as a union representative. Evaluation of an employee's performance of union representational responsibilities also constitutes unlawful control of the labor organization. Thus, an agency may not consider an employee's duties performed on behalf of a labor organization, either positively or negatively, when evaluating that employee's job performance.

Union representatives may not be rewarded for their participation on the work group - Even if an award given by management to a union representative for a positive performance on a work group in the capacity as a union representative may not viewed as interfering with any protected section 7102 rights of the union representative who is a union member to "form, join or assist a labor organization," the giving of such an award would interfere with the section 7102 right of unit employees who elect not to join the union to refrain from union activity. Thus, these unit employees must join the union to become eligible to serve on a work group and to earn an award. This situation is no different than if an agency established a policy to only promote union members. Just as that conduct would clearly be violative of the Statute, rewarding union representatives for the performance of their union duties would similarly be violative of the Statute.(13) Even if union representatives are selected for work groups not based in whole or in part on their union membership, and even if their individual performance is not evaluated by management, those union representatives still may not be rewarded for their participation on the work group. Union representatives simply may not be rewarded by management for their participation in protected union activities. Although there would be no individual evaluation of a union representative's performance on the work group, and although under this scenario all unit employees would be eligible to serve as a union representative on a work group, those non-member employees would still be required to acquiesce to serve as a union representative in order to participate on the work group and be eligible for a reward. This requirement interferes with those employees' statutory right to refrain from union activity.

Employees Serving Pursuant to the Assignment of Work

The parties also have the election to structure their employee involvement activities in a manner so that bargaining unit employees do not serve as union representatives and are not in a representational capacity while participating in these employee involvement activities. In these circumstances, the parties elect to establish employee involvement activities as a benefit available to all unit employees (similar to other contractual benefits), rather than as an extension of the collective bargaining relationship intended to create an alternative means of communicating between the union as the exclusive representative and the agency.

Union membership cannot be a factor in selection if an employee is serving as an assignment of work and not serving as a union representative - Whether employees are selected for these work groups by management, jointly by union and management, or by the union through delegation by management, union membership cannot be a criteria in selection.(14) Bargaining unit employees participating in these employee involvement activities and work groups are not participating as union officials engaged in protected activity and are not serving in a representational capacity. Thus, it is an unfair labor practice for a union and/or an agency to consider whether an employee is a union dues paying member when making selections for these activities. Under this system, just as an exclusive representative may not take union membership into consideration when negotiating benefits through collective bargaining or processing and settling grievances under the contract, the union cannot take union membership into consideration when selecting, or even merely recommending, employees for employee involvement activities and work groups when those employees are not serving in the capacity of a union representative. Similarly, just as an agency may not take union membership into consideration when promoting employees or deciding on details, an agency cannot take union membership into consideration when selecting employees for assignment to a work group under an employee involvement program. Unlike the situation when employees are serving as union representatives and a union may or may not consider union membership in that selection, in situations where the employee is not serving as a representative, union membership may never be a factor considered.

Employees serving through the assignment of work and not as union representatives may be evaluated on their performance - If not serving as union representatives, the employees are performing assigned duties, and as such, they may have their employee involvement activities and work group performance taken into consideration when evaluating their work performance and issuing awards. Just as an employee can be evaluated, either positively or negatively, when performing their traditional job functions, employees serving on work groups through the assignment of work can lawfully be evaluated on their performance. Therefore, if the employee is serving pursuant to the assignment of work and not as a union representative, the employee may have critical elements and performance standards geared to those work group activities and may be rewarded or even removed from the work group activity by management based on their performance.

Accordingly, the key determination is whether the bargaining unit employees participating in employee involvement activities and on task forces or work groups serve as representatives of the exclusive representative or serve pursuant to the assignment of work. An employee cannot serve in both capacities. The parties should ensure that they have a common understanding of the capacity in which an employee will serve prior to establishing their program for involving employees in reinvention initiatives, selecting employees for work groups and evaluating their performance for those activities. Again, if serving as a union representative, the exclusive representative may (but is not required to) select only union members as its representatives, but those union representatives may not be evaluated or rewarded for their service as union representatives on the task force or work groups. If serving on these work groups as part of their assignment of duties, union membership may never be considered in selection, and the employees may be evaluated and rewarded for their task force activities.

PART 2- GUIDANCE TO REGIONAL DIRECTORS WHEN ASSISTING THE PARTIES IN ESTABLISHING AND IMPLEMENTING WORK GROUPS UNDER THE PARTNERSHIP PRINCIPLES IN EXECUTIVE ORDER 12871

The Office of the General Counsel, through the seven Regional Offices and the Headquarters Office, has actively furthered its mission of providing leadership in promoting productive and stable labor-management relationships in the Federal sector by assisting agencies and unions covered by the Statute, upon joint request, to: ensure an understanding of, and compliance with the Statute; develop consensual problem-solving skills to reduce the reliance on adversarial methods; enable Federal agencies in partnership with Federal unions to deliver the highest quality services; and enhance the quality of work life and the well-being of employees and managers.

Complimenting the enforcement of the Statute by the investigation, and where settlement efforts are unsuccessful, prosecution of unfair labor practice charges, and the processing of representation petitions, the Office of the General Counsel has utilized our employees' expertise in labor law and problem solving to assist Federal employees, unions and agency management in resolving disputes and enhancing labor-management relationships as an alternative to adversarial litigation.

This portion of the memorandum provides guidance to the Regions when assisting parties, upon joint request, in creating the framework for the establishment and implementation of employee involvement programs and work groups which are consistent with the views in this memorandum.

Agencies and unions have discretion to establish employee involvement programs and work groups in the manner they deem best, as long as consistent with the legal principles outlined in this memorandum. However, when a Region is requested to assist the parties to jointly develop their employee involvement program and establish work groups, the Regions should ensure that the following principles are followed:

A. Jointly Developed Using Interest Based Principles

Employee involvement programs should be jointly designed by the parties using an interest based problem-solving approach, rather than the traditional proposal/adversarial method of negotiations. As discussed in the background section of this memorandum on page 2, where agencies and unions have embraced the principles in the Executive Order and have worked together cooperatively and collaboratively under partnership principles, they normally have established employee involvement programs with work groups without adversary confrontations. In my view, use of an interest based approach is the best method to achieve these results.

B. Roles of the Group Members

It is critical that the parties understand the roles of the members of the work group. Who are the various members of the work group representing - headquarters management, regional management, the union, themselves, employees in their division? How were the various members chosen for inclusion on the work group? Similarly, the group members should understand the consequences which flow from those roles. For example, employees representing the union are engaged in protected union activity and employees serving through the assignment of work are not engaged in protected union activity.

C. Common Expectations and Understandings as to How the Work Group Will Function and Operate

It is essential that the parties and the members of the work group share a common understanding of the following matters for each work group established:

1. Charge and Expectations

a. What are the expectations of the work group members? Do the group members share common expectations that they want to collectively accomplish as the work product of their group activities?

b. What is the charge of the work group? What are the problems, issues or subject matters that the work group is being asked to resolve? What are the results for which the group members are collectively responsible?

c. What limitations, if any, are there on the matters which the work group can explore? Are there specific topics or options which are outside the group's charge?

2. Decision Making Authority

a. Who is the ultimate decision maker for the issues assigned to the work group?

b. If the work group is not the ultimate decision maker, has the ultimate decision maker already made some decisions on subjects which would otherwise be within the group's charge? Are there some matters which, in essence, are "off the table"?

c. If the work group is not the ultimate decision maker, what happens if the ultimate decision maker does not accept the work group's recommendations in total? Does the ultimate decision maker return the recommendations to the work group for further action? Does the ultimate decision maker implement decisions not recommended by the work group without further group involvement?

d. What communication is expected between the work group and the ultimate decision maker? Will there be periodic status reports?

e. Has the ultimate decision maker established any standards that the solutions must meet?

f. Has the ultimate decision maker listed any interests that the solutions must satisfy?

3. Process

a. Will the group utilize interest based principles and an interest based approach, or will the group members present their positions and attempt to convince the other members to agree with those positions and modify their own positions? Are all members of the group committed to the process agreed upon?

b. What information will be available to the work group?

c. What degree of confidentiality is attached, if any, to that information?

d. What will be the format of the group's final product - written report, oral presentation, recommendations only? What matters should that final product address - process, alternatives rejected, discussion as to how the solutions satisfy the interests?

e. Will the work group present one solution or options? Will the group rank or prioritize options?

4. Operation

a. Do the group members possess the requisite skills to accomplish the charge? Does the group need any specific training prior to beginning its task?

b. What are the time limitations on the group's activities? Will the group establish any incremental time targets?

c. Should the work group adopt ground rules? For example, will there be ground rules on such maters as what happens if a member misses a meeting or leaves a meeting early?

d. How will the work group reach their decisions? What happens if the group cannot reach a decision under that process? What does the group do when it gets "stuck?"

e. Will there be a group leader? If so, what are the group leader's responsibilities? Who will be responsible for coordinating logistics for meetings, obtaining necessary facilities, services and supplies, disseminating information?

f. Will there be a facilitator - either from within or outside the group? What will be the facilitator's role?

Some of these matters, such as the charge of the group, identification of the ultimate decision maker and the group's responsibilities and accountability, should be established by the parties who are creating the work group. Other topics such as ground rules, incremental time targets, and whether there will be a team leader should be established by the members of the group themselves. Other matters listed above may be established by the parties creating the work group or by the work group members themselves. The key is that regardless where these matters are decided, either by the parties creating the work group or by the work group itself, all members of the work group must have a common understanding of these matters before the group begins its work.

The following attachment contains three models providing for the establishment of work groups which, in my view, are consistent with the legal views in Part 1 of this memorandum discussing the rights and obligations of the parties under the Statute. These models are only possibilities, however, and the Regions should assist the parties in using an interest based problem-solving approach to create their own model or adapt these models to satisfy their interests.


Attachment: Model Work Groups


Footnotes:

1. See, e.g.; Air Force Accounting and Finance Center, Lowry Air Force Base, Denver, Colorado, 42 FLRA No. 85, 42 FLRA 1226 ("Management's conduct in bypassing the Union and dealing directly with unit employees inherently undermines the status of the Union and constitutes a violation of the Statute.").

2. See, e.g.; Air Force Logistics Command, Odgen Air Logistic Command, Hill Air Force Base, Utah, 43 FLRA No. 59, 43 FLRA 736 (1991)("However, it is clear that '[a]n employer may deal directly with its employees over any lawful matter if it first obtains the consent of their union.' Toledo Typographical Union No. 63 v. NLRB, 907 F.2d 1220, 1222 (D.C. Cir. 1990), citing J. I. Case Co. V. NLRB, 321 U.S. 322, 338 (1944)."

3. See, e.g.; Internal Revenue Service,(District, Region, National Office Units), 19 FLRA No. 48, 19 FLRA 353, 354 (1985), affirmed sub nom. National Treasury Employees Union v. FLRA, 826 F. 2d 1114 (1987)("[A]s part of its overall management responsibility to conduct operations in an effective and efficient manner, an agency may question employees directly provided that it does not do so in a way which amounts to attempting to negotiate directly with its employees concerning matters which are properly bargainable with its employees' exclusive representatives").

4. Of course, an agency and a union must also fulfill their other statutory obligations while the program is being implemented, such as the obligation of an agency to allow the union to be represented at a formal discussion and to receive information, upon request, under section 7114(b) of the Statute and the obligation of the union to represent the interests of all unit employees fairly and without discrimination based on union membership as required by section 7114(a) of the Statute.

5. Pearl Harbor at 1257.

6. Pearl Harbor at 1257.

7. This guidance is consistent with decisions under the National Labor Relations Act (Act). Section 8(a)(2) of the Act makes it an unfair labor practice for an employer to dominate, interfere with or support a labor organization. Section 2(5) of the Act defines a labor organization as any type of committee in which employees participate which is established for the purpose, in whole or in part, of "dealing with" the employer over terms and conditions of employment. The National Labor Relations Board (Board) inE.I. du Pont de Nemours, 311 NLRB 893, 143 LRRM 1121 (1993) addressed allegations that an employer bypassed the union and dealt directly with employees on mandatory subjects of bargaining. Where there was a mechanism to keep bargainable issues out of the discussions and to prevent the consideration of matters within the scope of the union's duties as the exclusive collective bargaining representative, the Board found no unlawful bypass. Where the discussions included activities properly within the union's authority, the Board found unlawful bypasses of the exclusive representative. Compare, Electromation, Inc., 309 NLRB 99, 142 LRRM 1001 (1992), affirmed 147 LRRM 2257 (D.C. Cir. 1994) which involved a non-union setting.

8. See, American Federation of State, County and Municipal Employees, Local 2910, AFL-CIO, 23 FLRA No. 49, 23 FLRA 352 (1986)(An exclusive representative did not violate section 7116(b)(1) or (2) of the Statute by denying non-union employees an opportunity to serve on a "qualifications rating panel") and Department of the Air Force, Griffiss Air Force Base, Rome, New York, 25 FLRA No. 44, 25 FLRA 579 (1987) and U.S. Department of Commerce, Bureau of the Census, 17 FLRA No. 97, 17 FLRA 667 (1985)(It is not unlawful for an exclusive representative to limit votes to members only to ratify a contract).

9. Similarly, there is no requirement in the Statute that the parties elect to establish their employee involvement program so that employees serve as union representatives on the work groups. An alternative system where employees serve pursuant to the assignment of work, rather than as union representatives, is discussed at pages 12 - 13.

10. See, e.g., National Federation of Federal Employees, Local, 1827, 49 FLRA No. 71, 49 FLRA 738 (A union violated the Statute when it refused to allow non-union members of the bargaining unit to participate in a poll concerning the method of determining seniority to calculate seniority-based benefits in a situation where the contract granted the union the discretion to determine the type of seniority to be used); U.S. Air Force, Loring Air Force Base, Limestone, Maine, 43 FLRA No. 90, 43 FLRA 1087 (1992)(An activity and union violated the Statute by entering into a settlement agreement which provided for the distribution of EDP with preference to union members); and Antilles Consolidated Education Association (OEA/NEA), San Juan, Puerto Rico, 36 FLRA No. 79, 36 FLRA 776 (1990)(The union violated the Statute when it charged only non-members a fee to administer a dental\optical plan established through collective bargaining as a benefit to all unit employees).

11. See, Letterkenny Army Depot, 35 FLRA No. 15, 35 FLRA 113 (1990)(This decision sets forth the analytical framework to determine whether an agency has discriminated against an employee for engaging in protected union activities).

12. See, e.g. National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 42 FLRA No. 88, 42 FLRA 1285 (1991)(Union proposals concerning an agency's obligation to rate the local union president on his representational duties is nonnegotiable).

13. Cf., Social Security Administration, Inland Empire Area,46 FLRA No. 16, 46 FLRA 161 (1992)(Inland Empire), where the Authority found a violation of section 7116(a)(1) and (2) of the Statute by reducing the amount of gainsharing awards paid to two employees because they engaged in protected activity. Contrary to situations where an agency may evaluate in a performance appraisal the quality of the work of union representatives on work groups, in Inland Empire, the agency made no qualitative evaluation of the manner in which the employees performed their union responsibilities. Similarly, contrary to the situation where a union representative is rewarded for serving in the capacity as a union representative, a capacity that non-dues paying members are normally excluded, in Inland Empire no unit employees were excluded from receiving the gainsharing awards.

14. Compare the cases cited in footnote 10 with the cases cited in footnote 8.