- DoD Directive 1400.25,
- Chapter 71 of title 5, United States Code, "Labor-Management Relations"
- Executive Order 12871, "Labor-Management Partnerships," October 1, 1993
- Public Law 96-70, "The Panama Canal Act of 1979," September 27, 1979
- Executive Order 12171, "Exclusions From the Federal Labor-Management Relations Program," as amended, November 19, 1979
- DoD Instruction 1400.10, "Employment of Foreign Nationals in Foreign Areas," December 5, 1980
- Executive Order 12391, "Partial Suspension of Federal Service Labor-Management Relations," November 4, 1982
- 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
- 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)"
- Chapter 73 of title 5, United States Code, "Suitability, Security, and Conduct"
- Section 1918 of title 18, United States Code
- Title 29, Code of Federal Regulations, Parts 1404 and 1425, "Regulations of the Federal Mediation and Conciliation Service (FMCS)"
- Chapter 77 of title 5, United States Code, "Appeals"
- Title 29, Code of Federal Regulations, Parts 457-459, "Regulations of the Assistant Secretary of Labor for the American Workplace"
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.
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.
- 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).
- The Heads of the DoD Components shall ensure the labor- management relations program is implemented in their organizations.
The terms defined in 5 USC 7103 (reference (b)) have the same definitions when used in this Subchapter.
- 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.
- 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.
- 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:
- The National Security Agency (see 5 USC 7103(a)(3)(D) (reference (b)));
- Those DoD functional or organizational entities the President has excluded from coverage under E.O. 12171 (reference (e)); and,
- 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)).
- 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.
- 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)).
- 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)).
- Agreement Review
- 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)).
- 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.
- 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.
- 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.
- 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.
- 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).
- Exclusions from Coverage of the Federal Labor-Management
- 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:
- They have as a primary function intelligence, counterintelligence, investigative, or national security work; and,
- The provisions of the program cannot be applied to them in a manner consistent with national security requirements and considerations.
- 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.
- 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:
- Suspension of Provisions of the Federal Labor-Management
- 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.
- 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.
- 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
- Representation Cases
- DoD activities shall follow the procedures in 5 CFR 2422 (reference (i)) governing representation proceedings.
- 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.
- 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.
- 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.
- Unfair Labor Practice Proceedings
- 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.
- 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.
- Review of Negotiability Issues
- 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.
- 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.
- Review of Arbitration Awards (except those involving
performance-based or adverse actions)
- DoD activities shall follow the procedures in 5 CFR 2425 (reference (i)).
- 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.
- 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.
- National Consultation Rights
- The DoD and DoD primary national subdivisions shall follow the procedures in 5 CFR 2476 (reference (i)).
- 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.
- 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.
- 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)).
- 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.
- Representation Cases
- Arbitration Awards Relating to Matters Described in 5
USC 7121(f) (reference (b))
- 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).
- 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.
- 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.
- 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.
- Judicial Review
- 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.
- 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.
- Reports. OPM requires that agencies provide two copies
of arbitration awards and certain information concerning changes
in exclusive bargaining units and collective bargaining
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).