Agencies and unions have new recommendations to determine if current non-bargaining unit positions are accurately excluded from eligibility to join a bargaining unit.

If any position has been erroneously deemed ineligible to join a federal union, then agencies and unions should work together quickly to correct those mistakes, according to Jan. 26 guidance from the Office of Personnel Management.

The OPM guidance is a response to a host of recommendations from the White House Task Force on Worker Organizing and Empowerment. The 70 recommendations, released last February, aim to empower unions and build on the Biden administration’s goal of strengthening and empowering the federal workforce — the first priority in the President’s Management Agenda. Vice President Kamala Harris is the task force’s chairwoman and Labor Department Secretary Marty Walsh is the vice chairman.

In particular, the latest OPM document addresses the task force’s recommendation that OPM should provide guidance on how to review and, if needed, correct non-bargaining unit positions’ eligibility to enter a union.

To accomplish this assessment thoroughly, agencies should work with their unions that represent other employees in the organization, OPM said. Specifically, agencies and unions can file joint petitions for clarification to the Federal Labor Relations Authority (FLRA), or request other assistance from the authority, if necessary.

“Agencies and unions are strongly encouraged to work together on identifying which positions should be included or excluded from bargaining units and consider filing a joint petition to the FLRA,” OPM said.

Agencies can start the review process by using bargaining unit status (BUS) codes to identify whether positions are currently covered by a bargaining unit or not, according to the guidance. Additionally, they can find further information on bargaining units through OPM’s federal labor management information system (FLIS).

The OPM guidance also contains multiple instances of the nuances that can determine bargaining unit eligibility.

In one example, the FLRA has explained that employees engaged in personnel work involving individuals, such as military personnel, who do not meet the definition of “employee” under statute, cannot be excluded from bargaining units.

In another instance, the FLRA previously determined that an employee who conducts performance evaluations technically has “supervisory status,” and therefore cannot join a union.

Notably, the guidance also detailed how to determine union eligibility for remote federal employees. Bargaining units are typically determined by geographical location, but with a growing number of remote workers in government, the issue becomes more complicated.

“Over the last several years, more and more employees are becoming remote workers raising questions of continued bargaining unit coverage once an employee moves to a different geographic area while remaining in the same organization,” OPM said.

Agencies and unions should work together to determine eligibility after any employees move, by reviewing FLRA’s criteria. If needed, the two parties can then jointly file a unit clarification petition, OPM said.

“OPM strongly encourages agencies and unions to review these, other relevant decisions and FLRA reference guides discussed below and listed at the end of this guidance when reviewing bargaining unit coverage,” the guidance said. “OPM also strongly urges agencies and unions to develop their own outlines of issues and factors from existing authority case law to deal with each eligibility issue uniquely and separately.”

By making information about organizing rights more widely available, more workers will become aware of, and may act on, their rights to organize and collectively bargain, according to an OPM spokesperson.

The National Treasury Employees Union voiced its support for the guidance, adding that the federal union regularly conducts its own eligibility reviews.

“Because the law requires that federal sector unions represent the entire bargaining unit, regardless of membership status, it is essential that the union have accurate information about the bargaining unit, and can contest any exclusions that it feels are improper,” NTEU National President Tony Reardon said in an email to Federal News Network. “We welcome the ongoing efforts of the [task force] to encourage agencies to follow the letter and spirit of the Federal Service Labor Management Relations Statute.”

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