PERMISS

Labor-Management Relations - Subchapter 711

DoD 1400.25-M
SUBCHAPTER 711
LABOR-MANAGEMENT RELATIONS
http://www.dtic.mil/whs/directives/corres/pdf/1400.25_SC711.pdf

SUBCHAPTER 711

LABOR-MANAGEMENT RELATIONS




References:

  1. DoD Directive 1400.25,
  2. Chapter 71 of title 5, United States Code, "Labor-Management Relations"

  3. Executive Order 12871, "Labor-Management Partnerships," October 1, 1993

  4. Public Law 96-70, "The Panama Canal Act of 1979," September 27, 1979

  5. Executive Order 12171, "Exclusions From the Federal Labor-Management Relations Program," as amended, November 19, 1979

  6. DoD Instruction 1400.10, "Employment of Foreign Nationals in Foreign Areas," December 5, 1980

  7. Executive Order 12391, "Partial Suspension of Federal Service Labor-Management Relations," November 4, 1982

  8. DoD 7000.14-R, "Department of Defense Financial Management Regulation," Volume 8, "Civilian Pay Policy and Procedures," June 1994, authorized by DoD Instruction 7000.14, "DoD Financial Management
    Policy and Procedures," November 15, 1992

  9. Title 5, Code of Federal Regulations, Chapter XIV, "Regulations of the Federal Labor Relations Authority (FLRA), General Counsel of the Federal
    Labor Relations Authority, and Federal Service Impasses Panel (FSIP)"

  10. Chapter 73 of title 5, United States Code, "Suitability, Security, and Conduct"

  11. Section 1918 of title 18, United States Code

  12. Title 29, Code of Federal Regulations, Parts 1404 and 1425, "Regulations of the Federal Mediation and Conciliation Service (FMCS)"

  13. Chapter 77 of title 5, United States Code, "Appeals"

  14. Title 29, Code of Federal Regulations, Parts 457-459, "Regulations of the Assistant Secretary of Labor for the American Workplace"


A. PURPOSE

This Subchapter implements policies under references (a)
through (n), prescribes procedures, delegates authority, and
assigns responsibility for the Federal labor-management relations
program within the Department of Defense.

B. POLICY

It is DoD policy under DoD Directive 1400.25 (reference (a))
to establish labor management relationships focused on supporting
and enhancing the Department"s national security mission and
creating and maintaining a high performance workplace which
delivers the highest quality products and services to the
American public at the lowest possible cost. Such relationships
should be committed to pursuing solutions that promote increased
quality and productivity, customer service, mission
accomplishment, efficiency, quality of work life, employee
empowerment, organizational performance, and military readiness.
DoD activities should seek to use consensual means of resolving
disputes that may arise in a labor-management relationship.

C. RESPONSIBILITIES


  1. The Deputy Assistant Secretary of Defense (Civilian
    Personnel Policy) (DASD)(CPP)
    shall issue labor relations
    policies and procedures, coordinate labor-management relations
    programs and activities throughout the Department, and provide
    guidance on labor-management relations issues. The DASD(CPP)
    shall be the Department"s primary point of contact with the
    Federal Labor Relations Authority (FLRA) and shall authorize the
    submission of documents to the Authority as provided for in this
    Subchapter (see paragraphs F.6.c., d. and f., below).

  2. The Heads of the DoD Components shall ensure the labor-
    management relations program is implemented in their
    organizations.

D. DEFINITIONS

The terms defined in 5 USC 7103 (reference (b)) have the same definitions when used in this Subchapter.



  1. Employee. The definition of employee in 5 USC
    7103(a)(2) (reference (b)) includes civilian employees paid from
    nonappropriated fund instrumentalities (NAFIs), including off-
    duty military personnel with respect to employment with a DoD
    NAFI, when such employment is civilian in nature and separate
    from any military assignment. Military personnel are not
    "employees" for purposes of this Subchapter with respect to any
    matter related to their military status or assignment.
    Contractor personnel also are not covered by the definition of
    employee. Pursuant to Pub. L. 96-70 (1979), Section 1271(a)
    (reference (d)), the definition of employee includes non-U.S.
    citizen employees of the Department of Defense in the Panama
    Canal area.

  2. Primary National Subdivisions. DoD primary national
    subdivisions are the Office of the Secretary of Defense, the
    Chairman of the Joint Chiefs of Staff, the Military Departments,
    the Defense Agencies (except the National Security Agency and
    those that the President has excluded from coverage by E.O. 12171
    (reference (e)), the National Guard Bureau, the Army and Air
    Force Exchange Service, and the Department of Defense Education
    Activity.

E. COVERAGE


  1. The Federal labor-management relations program and this
    Subchapter apply to all the DoD Components, including
    nonappropriated fund instrumentalities under their jurisdiction,
    except for the following:


    1. The National Security Agency (see 5 USC 7103(a)(3)(D) (reference (b)));

    2. Those DoD functional or organizational entities the
      President has excluded from coverage under E.O. 12171 (reference
      (e)); and,

    3. Non-U.S. citizen personnel employed at DoD
      activities except for those in the Republic of Panama.
      Relationships with unions representing such non-U.S. citizens
      shall be consistent with pertinent intergovernmental agreements,
      local practices, customs, and DoD Instruction 1400.10 (reference
      (f)).

  2. Provisions of Chapter 71 of 5 USC (reference (b))
    shall not apply to any DoD entities located outside the 50 States
    and the District of Columbia where the President has suspended
    them under E.O. 12391 (reference (g)). This Subchapter shall be
    applied consistent with such suspensions.

F. PROCEDURES


  1. Dues Withholding. DoD activities shall withhold union
    dues by allotment consistent with the requirements of 5 USC
    7115 (reference (b)) and DoD 7000.14-R, Vol. 8 (reference (h)).

  2. Right of Representation. As required by 5 USC
    7114(a)(3) (reference (b)), DoD activities shall inform
    bargaining unit employees annually of their right to union
    representation under 5 USC 7114(a)(2)(B) (reference (b)).

  3. Agreement Review


    1. The Defense Civilian Personnel Management Service
      (CPMS), Field Advisory Services (FAS), shall review and approve
      or disapprove agreements pursuant to 5 USC 7114(c) (reference
      (b)).

    2. DoD activities should provide CPMS, FAS with one copy of
      agreements, or supplements to agreements, once negotiations are
      completed in order to facilitate the review and provide CPMS, FAS
      an opportunity to address issues prior to execution of the
      agreement.

    3. Activities shall forward one copy of executed
      agreements, or supplements to agreements, to CPMS, FAS
      immediately upon execution. The transmittal letter shall
      indicate the specific date the agreement was executed, the name
      and address of the labor organization's designated
      representative, and the name and phone number of an activity
      point of contact.

    4. Immediately upon publication, DoD activities shall
      provide CPMS, FAS with two copies of published agreements, or
      supplements to agreements, together with Office of Personnel
      Management (OPM) Form 913-B. CPMS, FAS will provide one copy to
      OPM (see paragraph F.10., below, regarding this reporting
      requirement). Activities shall also provide a copy to their
      appropriate DoD Component headquarters.

    5. Local agreements subject to a national or other
      controlling agreement at a higher organizational level shall be
      approved under the procedures of the controlling agreement.
      Where no such procedures exist, a local agreement shall be
      reviewed under the procedures in this subsection.

    6. DoD activities shall provide CPMS, FAS and their
      appropriate DoD Component headquarters with OPM Forms 913-B
      concerning changes in agreement expiration dates. CPMS, FAS will
      forward this information to OPM (see paragraph F.10., below,
      regarding this reporting requirement).

  4. Exclusions from Coverage of the Federal Labor-Management
    Relations Program


    1. The President may issue an order under 5 USC
      7103(b)(1) (reference (b)) excluding DoD functional or
      organizational entities from coverage under the Federal labor-
      management relations program if the President determines:


      1. They have as a primary function intelligence,
        counterintelligence, investigative, or national security work;
        and,

      2. The provisions of the program cannot be applied to
        them in a manner consistent with national security requirements
        and considerations.

    2. DoD activities shall forward requests for such
      exclusions, with fully developed supporting rationale, through
      channels to the DASD(CPP) for appropriate action. Requests shall
      include information on the numbers, types and grades of civilian
      employees involved and on whether they are represented by a
      union.

  5. Suspension of Provisions of the Federal Labor-Management
    Relations Program


    1. Under 5 USC 7103(b)(2) (reference (b)), the President may issue an order suspending any provision of the Federal labor- management relations program with respect to DoD functional or organization entities outside the 50 States and the District of
      Columbia if the President determines the suspension is necessary
      in the interest of national security. Under this authority, the
      President issued E.O. 12391 (reference (g)) which prohibits
      dealings on labor relations matters that would substantially
      impair DoD's implementation of any treaty or agreement and allied
      minutes or understandings between the United States and host
      nations.

    2. DoD activities shall direct requests to effect a
      suspension under E.O. 12391 (reference (g)) through channels to
      the Secretary of Defense through the Under Secretary of Defense
      (Personnel and Readiness) (USD(P&R)). The appropriate Under
      Secretary of Defense or Assistant Secretary of Defense shall
      endorse requests for suspensions in the Office of the Secretary
      of Defense. DoD Component Heads shall sign requests from their
      organizations. Each request shall fully document the collective
      bargaining issue or dispute involved, identify the bargaining
      unit, and demonstrate how the labor relations matter would
      substantially impair implementation of a specific treaty or
      international agreement. The Secretary of Defense, after
      consultation with the Secretary of State, or designee, shall make
      the final decision on the suspension.

  6. Processing Cases under the 5 CFR Chapter XIV Regulations
    of the Federal Labor Relations Authority (FLRA), the FLRA General
    Counsel and the Federal Service Impasses Panel (FSIP) (reference
    (i))


    1. Representation Cases


      1. DoD activities shall follow the procedures in 5 CFR
        2422 (reference (i)) governing representation proceedings.

      2. Proposed units that would encompass employees in two
        or more DoD Components or employees under different personnel
        systems generally are not appropriate. Where a union files a
        representation petition involving the creation of such a
        bargaining unit, the DoD activity involved shall immediately
        provide CPMS, FAS and the appropriate DoD Component headquarters
        with a copy of the petition. The DoD activity shall also provide
        those offices with the subsequent FLRA Regional Director's
        decision on the petition immediately upon receipt. The DoD
        activity shall coordinate with CPMS, FAS through their
        appropriate DoD Component headquarters any application for review
        of a FLRA Regional Director's decision involving such a petition.

      3. DoD activities shall provide copies of FLRA Regional
        Director Decisions and Orders on new or revised units to CPMS,
        FAS and the appropriate DoD Component headquarters.

      4. DoD activities shall provide CPMS, FAS with two
        copies of information on new, revised, or terminated units.
        Activities shall also provide a copy to the appropriate DoD
        Component headquarters. OPM Form 913B shall be used to submit
        this data (see paragraph F.10., below, regarding this reporting
        requirement). CPMS, FAS will provide a copy to OPM.

    2. Unfair Labor Practice Proceedings


      1. DoD activities shall follow in 5 CFR 2423 (reference
        (i)). Where exceptions to an Administrative Law Judge (ALJ)
        decision are filed with the FLRA, the DoD activity will provide
        CPMS, FAS and the appropriate DoD Component headquarters with a
        copy of the decision, the exceptions to the decision, and any
        subsequently filed documents. Documents shall be forwarded to
        those offices at the time they are filed with the FLRA or when
        they are received by the DoD activity.

      2. 5 USC 7311 (reference (j)) and 18 USC 1918
        (reference (k)) prohibit Federal employees from striking against
        the Government of the United States. Employees can be
        disciplined for engaging in such action. 5 USC 7116(b)(7)
        (reference (b)) proscribes strikes, work stoppages, slowdowns,
        and picketing that interferes with an agency's operations by
        unions representing DoD employees. Informational picketing,
        which does not disrupt agency operations or prevent public access
        to a facility, is not prohibited. CPMS, FAS and the appropriate
        DoD Component headquarters shall be immediately notified when
        prohibited acts take place.

    3. Review of Negotiability Issues


      1. DoD activities shall follow the procedures in 5 CFR
        2424 (reference (i)). Under these procedures, unions are
        required to request in writing an allegation that a proposal is
        outside the duty to bargain, and the agency is required to
        respond in writing within 10 days from receipt of the union's
        request. Before making such a response, a DoD activity will
        consult with CPMS, FAS and its appropriate DoD Component
        headquarters. If a union subsequently files a negotiability
        appeal with the FLRA, the appeal must be filed within 15 days
        after the date the allegation is served on the union, meet the
        other requirements in the FLRA's regulations, and be served on
        the Director, Workforce Relations, Office of the Deputy Assistant
        Secretary of Defense (Civilian Personnel Policy), 4000 Defense
        Pentagon, Room 3D269, Washington, D.C., 20301-4000. The Director
        shall immediately provide a copy to CPMS, FAS and the affected
        DoD Component if they have not been served with a copy.

      2. CPMS, FAS shall develop an agency statement of
        position or shall coordinate on the agency statement of position
        when a DoD Component elects to prepare it. DoD Components shall
        immediately advise CPMS, FAS of their decision regarding
        preparation of the agency"s statement of position.

    4. Review of Arbitration Awards (except those involving
      performance-based or adverse actions)


      1. DoD activities shall follow the procedures in 5
        CFR 2425 (reference (i)).

      2. DoD activities shall contact CPMS, FAS and their
        appropriate DoD Component headquarters when they believe an
        exception to an arbitration award should be filed with the FLRA.
        Where there appears to be a basis for filing an exception, an
        activity shall forward the award, the grievance file, the address
        of the arbitrator, and the name and address of the union
        representative in the proceeding to CPMS, FAS and the appropriate
        DoD Component headquarters within 5 calendar days of receipt of
        the award. The activity shall forward the postmarked envelope in
        which the award was mailed (if delivered by mail) to CPMS, FAS.
        If the award is served by personal delivery, the date of receipt
        shall be stamped on the document. Where CPMS, FAS determines
        that an exception shall be filed, it shall develop and file the
        exception or shall coordinate on the exception when a DoD
        Component elects to develop it. The DoD Components shall
        immediately advise CPMS, FAS of their decision regarding
        preparation of the agency"s exception to the award.

      3. DoD activities shall forward a union-filed request for
        an exception to an arbitration award, together with the award and
        their position on the exception, to CPMS, FAS and their
        appropriate DoD Component headquarters within 5 calendar days
        from receipt of the exception. When CPMS, FAS determines that an
        opposition shall be filed, it shall prepare the opposition or
        shall coordinate on the opposition when a DoD Component elects to
        prepare it. DoD Components shall immediately advise CPMS, FAS of
        their decision regarding preparation of the agency"s opposition
        to the exception to the award.

    5. National Consultation Rights


      1. The DoD and DoD primary national subdivisions
        shall follow the procedures in 5 CFR 2476 (reference (i)).

      2. Upon written request by a union, the Department of
        Defense or a DoD primary national subdivision shall grant
        national consultation rights to the union when it meets the
        criteria in the regulations of the FLRA. The Department of
        Defense or a DoD primary national subdivision shall terminate
        national consultation rights where a union no longer qualifies
        for such rights. The organization taking the action shall first
        serve the union with a notice of intent to terminate national
        consultation rights, together with a statement of reasons, not
        less than 30 days before the intended termination date.

      3. DoD primary national subdivisions shall provide
        CPMS, FAS with a copy of any letter granting or denying a union's
        request for national consultation rights or notifying a union of
        its intent to terminate national consultation rights.

    6. General Statements of Policy or Guidance. DoD
      activities shall forward any recommendation that DoD seek a
      general statement of policy or guidance from FLRA as provided for
      by the FLRA's regulations (5 CFR 2427 (reference (i))) through
      channels to the DASD(CPP) for appropriate action. DoD activities
      shall immediately notify the DASD(CPP) of any referrals to FLRA
      for review and decision or general rulings under 5 CFR 2429.4
      (reference (i)).

    7. Negotiation Impasses. DoD activities shall follow the
      procedures in 5 CFR 2470 (reference (i)) and 29 CFR 1404 and 1425
      (reference (l)) governing resolving negotiation impasses.

  7. Arbitration Awards Relating to Matters Described in 5
    USC 7121(f) (reference (b))


    1. Under 5 USC 7121(f) (reference (b)), exceptions to
      arbitration awards involving certain adverse actions or
      unacceptable performance actions may not be filed with the FLRA.
      However, such awards are subject to judicial review in the same
      manner and on the same basis as if those matters had been decided
      by the Merit Systems Protection Board (MSPB).

    2. The grounds and procedures for judicial review of a
      decision of the Board are set forth in 5 USC 7703 (reference
      (m)). Under that section, only the Director of OPM may seek
      judicial review of such matters. Where the Director did not
      intervene in the matter before the arbitrator, the Director must
      first petition the arbitrator for reconsideration of the award.
      To facilitate the Director"s involvement, individuals
      representing DoD activities in an arbitration proceeding should
      instruct the arbitrator at the hearing to prepare an
      administrative record. The record should be maintained for at
      least 45 days from the date of the award.

    3. DoD activities shall expeditiously submit requests for
      judicial review through channels to the Director of OPM for
      appropriate action. CPMS, FAS shall be provided a copy of any
      requests.

  8. Standards of Conduct. The regulations of the Assistant
    Secretary of Labor for the American Workplace (29 CFR 457-459
    (reference n)) implement 5 USC 7120 (reference (b)) which
    relates to the standards of conduct for labor organizations under
    Chapter 71 of 5 USC (reference (b)). Parties involved in such
    proceedings are responsible for following those regulations.

  9. Judicial Review


    1. Many final orders of the FLRA may be appealed to an
      appropriate United States Court of Appeals pursuant to 5 USC
      7123 (reference (b)). To ensure consistency of interpretation
      and full consideration of the policy and program implications of
      such appeals, DoD activities shall forward requests for judicial
      review of decisions of the Authority, or requests to intervene in
      judicial proceedings, through channels to the Office of the
      Deputy General Counsel, Personnel and Health Policy (ODGC)(P&HP),
      DoD, for review and approval in coordination with CPP.

    2. A DoD activity shall promptly notify the ODGC (P&HP)
      through channels upon learning that a union has initiated court
      action in a matter arising out of its relationship with the
      activity.

  10. Reports. OPM requires that agencies provide two copies
    of arbitration awards and certain information concerning changes
    in exclusive bargaining units and collective bargaining
    agreements to: Office of Personnel Management; Chief, Labor-
    Management Relations Division, 1900 E Street, N.W., Washington,
    D.C. 20415-0001. OPM Form 913-B, which is used to report the
    information on units and agreements, is available from that
    office. The assigned number for these reporting requirements is
    Interagency Report Control Number 1060-OPM-BI. DoD activities
    shall forward two copies of arbitration awards to that address.
    CPMS, FAS will provide the other information required by OPM (see
    paragraphs F.3.d. and f. and F.6.a.(4), above).

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