5 U.S.C. § 7121 — Grievance procedures

Page 870 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 7121 fluences and influences opposed to basic demo- cratic principles. Except as provided in sub- section (b) of this section, an organization is not required to prove that it is free from such influ- ences if it is subject to governing requirements adopted by the organization or by a national or international labor organization or federation of labor organizations with which it is affiliated, or in which it participates, containing explicit and detailed provisions to which it subscribes calling for— (1) the maintenance of democratic proce- dures and practices including provisions for periodic elections to be conducted subject to recognized safeguards and provisions defining and securing the right of individual members to participate in the affairs of the organiza- tion, to receive fair and equal treatment under the governing rules of the organization, and to receive fair process in disciplinary pro- ceedings; (2) the exclusion from office in the organiza- tion of persons affiliated with communist or other totalitarian movements and persons identified with corrupt influences; (3) the prohibition of business or financial interests on the part of organization officers and agents which conflict with their duty to the organization and its members; and (4) the maintenance of fiscal integrity in the conduct of the affairs of the organization, in- cluding provisions for accounting and finan- cial controls and regular financial reports or summaries to be made available to members. (b) Notwithstanding the fact that a labor orga- nization has adopted or subscribed to standards of conduct as provided in subsection (a) of this section, the organization is required to furnish evidence of its freedom from corrupt influences or influences opposed to basic democratic prin- ciples if there is reasonable cause to believe that— (1) the organization has been suspended or expelled from, or is subject to other sanction, by a parent labor organization, or federation of organizations with which it had been affili- ated, because it has demonstrated an unwill- ingness or inability to comply with governing requirements comparable in purpose to those required by subsection (a) of this section; or (2) the organization is in fact subject to in- fluences that would preclude recognition under this chapter. (c) A labor organization which has or seeks recognition as a representative of employees under this chapter shall file financial and other reports with the Assistant Secretary of Labor for Labor Management Relations, provide for bonding of officials and employees of the organi- zation, and comply with trusteeship and elec- tion standards. (d) The Assistant Secretary shall prescribe such regulations as are necessary to carry out the purposes of this section. Such regulations shall conform generally to the principles applied to labor organizations in the private sector. Complaints of violations of this section shall be filed with the Assistant Secretary. In any mat- ter arising under this section, the Assistant Sec- retary may require a labor organization to cease and desist from violations of this section and re- quire it to take such actions as he considers ap- propriate to carry out the policies of this sec- tion. (e) This chapter does not authorize participa- tion in the management of a labor organization or acting as a representative of a labor organiza- tion by a management official, a supervisor, or a confidential employee, except as specifically provided in this chapter, or by an employee if the participation or activity would result in a conflict or apparent conflict of interest or would otherwise be incompatible with law or with the official duties of the employee. (f) In the case of any labor organization which by omission or commission has willfully and in- tentionally, with regard to any strike, work stoppage, or slowdown, violated section 7116(b)(7) of this title, the Authority shall, upon an appropriate finding by the Authority of such violation— (1) revoke the exclusive recognition status of the labor organization, which shall then im- mediately cease to be legally entitled and ob- ligated to represent employees in the unit; or (2) take any other appropriate disciplinary action. (Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1210.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 13, 1978, see sec- tion 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title. SUBCHAPTER III—GRIEVANCES, APPEALS, AND REVIEW Editorial Notes AMENDMENTS 1979—Pub. L. 96–54, § 2(a)(42), Aug. 14, 1979, 93 Stat. 383, inserted ‘‘, APPEALS, AND REVIEW’’ after ‘‘GRIEV- ANCES’’. § 7121. Grievance procedures (a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agree- ment shall provide procedures for the settle- ment of grievances, including questions of arbitrability. Except as provided in subsections (d), (e), and (g) of this section, the procedures shall be the exclusive administrative procedures for resolving grievances which fall within its coverage. (2) Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement. (b)(1) Any negotiated grievance procedure re- ferred to in subsection (a) of this section shall— (A) be fair and simple, (B) provide for expeditious processing, and (C) include procedures that— (i) assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the ex- clusive representative, to present and proc- ess grievances; Page 871 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 7121 (ii) assure such an employee the right to present a grievance on the employee’s own behalf, and assure the exclusive representa- tive the right to be present during the griev- ance proceeding; and (iii) provide that any grievance not satis- factorily settled under the negotiated griev- ance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency. (2)(A) The provisions of a negotiated grievance procedure providing for binding arbitration in accordance with paragraph (1)(C)(iii) shall, if or to the extent that an alleged prohibited per- sonnel practice is involved, allow the arbitrator to order— (i) a stay of any personnel action in a man- ner similar to the manner described in section 1221(c) with respect to the Merit Systems Pro- tection Board; and (ii) the taking, by an agency, of any discipli- nary action identified under section 1215(a)(3) that is otherwise within the authority of such agency to take. (B) Any employee who is the subject of any disciplinary action ordered under subparagraph (A)(ii) may appeal such action to the same ex- tent and in the same manner as if the agency had taken the disciplinary action absent arbi- tration. (c) The preceding subsections of this section shall not apply with respect to any grievance concerning— (1) any claimed violation of subchapter III of chapter 73 of this title (relating to prohibited political activities); (2) retirement, life insurance, or health in- surance; (3) a suspension or removal under section 7532 of this title; (4) any examination, certification, or ap- pointment; or (5) the classification of any position which does not result in the reduction in grade or pay of an employee. (d) An aggrieved employee affected by a pro- hibited personnel practice under section 2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory proce- dure or the negotiated procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties’ negotiated procedure, whichever event occurs first. Selection of the negotiated procedure in no manner prejudices the right of an aggrieved employee to request the Merit Systems Protection Board to review the final decision pursuant to section 7702 of this title in the case of any personnel action that could have been appealed to the Board, or, where applicable, to request the Equal Employment Opportunity Commission to review a final deci- sion in any other matter involving a complaint of discrimination of the type prohibited by any law administered by the Equal Employment Op- portunity Commission. (e)(1) Matters covered under sections 4303 and 7512 of this title which also fall within the cov- erage of the negotiated grievance procedure may, in the discretion of the aggrieved em- ployee, be raised either under the appellate pro- cedures of section 7701 of this title or under the negotiated grievance procedure, but not both. Similar matters which arise under other per- sonnel systems applicable to employees covered by this chapter may, in the discretion of the ag- grieved employee, be raised either under the ap- pellate procedures, if any, applicable to those matters, or under the negotiated grievance pro- cedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise a matter either under the ap- plicable appellate procedures or under the nego- tiated grievance procedure at such time as the employee timely files a notice of appeal under the applicable appellate procedures or timely files a grievance in writing in accordance with the provisions of the parties’ negotiated griev- ance procedure, whichever event occurs first. (2) In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accord- ance with this section, an arbitrator shall be governed by section 7701(c)(1) of this title, as ap- plicable. (f) In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accord- ance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board. In matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems and which an aggrieved employee has raised under the negotiated grievance procedure, judi- cial review of an arbitrator’s award may be ob- tained in the same manner and on the same basis as could be obtained of a final decision in such matters raised under applicable appellate procedures. (g)(1) This subsection applies with respect to a prohibited personnel practice other than a pro- hibited personnel practice to which subsection (d) applies. (2) An aggrieved employee affected by a pro- hibited personnel practice described in para- graph (1) may elect not more than one of the remedies described in paragraph (3) with respect thereto. For purposes of the preceding sentence, a determination as to whether a particular rem- edy has been elected shall be made as set forth under paragraph (4). (3) The remedies described in this paragraph are as follows: (A) An appeal to the Merit Systems Protec- tion Board under section 7701. (B) A negotiated grievance procedure under this section. (C) Procedures for seeking corrective action under subchapters II and III of chapter 12. (4) For the purpose of this subsection, a person shall be considered to have elected— Page 872 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 7122 (A) the remedy described in paragraph (3)(A) if such person has timely filed a notice of ap- peal under the applicable appellate procedures; (B) the remedy described in paragraph (3)(B) if such person has timely filed a grievance in writing, in accordance with the provisions of the parties’ negotiated procedure; or (C) the remedy described in paragraph (3)(C) if such person has sought corrective action from the Office of Special Counsel by making an allegation under section 1214(a)(1). (h) Settlements and awards under this chapter shall be subject to the limitations in section 5596(b)(4) of this title. (Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1211; amended Pub. L. 103–424, § 9, Oct. 29, 1994, 108 Stat. 4365; Pub. L. 105–261, div. A, title XI, § 1104(b), Oct. 17, 1998, 112 Stat. 2142.) Editorial Notes AMENDMENTS 1998—Subsec. (h). Pub. L. 105–261 added subsec. (h). 1994—Subsec. (a)(1). Pub. L. 103–424, § 9(c), substituted ‘‘(d), (e), and (g)’’ for ‘‘(d) and (e)’’ and inserted ‘‘admin- istrative’’ after ‘‘exclusive’’. Subsec. (b). Pub. L. 103–424, § 9(a), designated existing provisions as par. (1) and redesignated former pars. (1) to (3) as subpars. (A) to (C), respectively, and subpars. (A) to (C) of former par. (3) as cls. (i) to (iii) of subpar. (a)(1)(C), respectively, and added par. (2). Subsec. (g). Pub. L. 103–424, § 9(b), added subsec. (g). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 13, 1978, see sec- tion 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title. PARTIAL SUSPENSION OF FEDERAL SERVICE LABOR- MANAGEMENT RELATIONS Subsec. (b)(3)(C) of this section suspended with re- spect to any grievance involving the implementation by the United States Forces of any treaty or agree- ment, including any minutes or understandings there- to, between the United States and the Government of the host nation, see section 1(d) of Ex. Ord. No. 12391, Nov. 4, 1982, 47 F.R. 50457, set out as a note under sec- tion 7103 of this title. § 7122. Exceptions to arbitral awards (a) Either party to arbitration under this chapter may file with the Authority an excep- tion to any arbitrator’s award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title). If upon review the Authority finds that the award is deficient— (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor-man- agement relations; the Authority may take such action and make such recommendations concerning the award as it considers necessary, consistent with applica- ble laws, rules, or regulations. (b) If no exception to an arbitrator’s award is filed under subsection (a) of this section during the 30-day period beginning on the date the award is served on the party, the award shall be final and binding. An agency shall take the ac- tions required by an arbitrator’s final award. The award may include the payment of backpay (as provided in section 5596 of this title). (Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1212; amended Pub. L. 98–224, § 4, Mar. 2, 1984, 98 Stat. 48.) Editorial Notes AMENDMENTS 1984—Subsec. (b). Pub. L. 98–224 amended subsec. (b) generally, substituting ‘‘beginning on the date the award is served on the party’’ for ‘‘beginning on the date of such award’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 13, 1978, see sec- tion 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title. § 7123. Judicial review; enforcement (a) Any person aggrieved by any final order of the Authority other than an order under— (1) section 7122 of this title (involving an award by an arbitrator), unless the order in- volves an unfair labor practice under section 7118 of this title, or (2) section 7112 of this title (involving an ap- propriate unit determination), may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority’s order in the United States court of appeals in the circuit in which the person resides or trans- acts business or in the United States Court of Appeals for the District of Columbia. (b) The Authority may petition any appro- priate United States court of appeals for the en- forcement of any order of the Authority and for appropriate temporary relief or restraining order. (c) Upon the filing of a petition under sub- section (a) of this section for judicial review or under subsection (b) of this section for enforce- ment, the Authority shall file in the court the record in the proceedings, as provided in section 2112 of title 28. Upon the filing of the petition, the court shall cause notice thereof to be served to the parties involved, and thereupon shall have jurisdiction of the proceeding and of the question determined therein and may grant any temporary relief (including a temporary re- straining order) it considers just and proper, and may make and enter a decree affirming and en- forcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the Authority. The filing of a petition under subsection (a) or (b) of this section shall not op- erate as a stay of the Authority’s order unless the court specifically orders the stay. Review of the Authority’s order shall be on the record in accordance with section 706 of this title. No ob- jection that has not been urged before the Au- thority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraor- dinary circumstances. The findings of the Au- thority with respect to questions of fact, if sup-