Unionization - Frequently Asked Questions | Office of Employee Advocacy

The Congressional Accountability Act of 1995 (CAA) makes the Federal Service Labor-Management Relations statute applicable to House employees. However, the specific rights afforded to a House employee depend upon which House entity or "employing office" employs the employee. Where there has been approval of the labor regulations adopted by the Office of Congressional Workplace Rights for a category of employees identified in the CAA's FSLMRS provisions, employees in that category can proceed under the FSLMRS unionization processes and procedures. Presently, OCWR's regulations have been approved for groups, including staff in Member and Committee offices and select Officer offices.

Can Employee Advocacy assist House employees who have questions about collective representation and collective bargaining?

Yes. Employee Advocacy can assist covered House employees under the CAA who have questions about collective representation and collective bargaining. Presently, Employee Advocacy can provide information about the status of unionization rights in the House of Representatives for various categories of employees, including employees of Member, Committee and Officer offices. Employee Advocacy can also provide information about the processes and considerations in identifying and forming a bargaining unit, as well as typical features of federal collective bargaining processes. Further, Employee Advocacy can counsel, advise and represent covered House employees in proceedings and processes established for collective representation and collective bargaining under the Federal Service Labor-Management Relations Statute. Employee Advocacy can represent covered House employees in union matters in the same manner as a private-sector law firm, because matters under the FSLMRS are covered by the Congressional Accountability Act of 1995 (CAA).

Are wages and salaries subject to collective bargaining for House staff who unionize under the CAA's FSLMRS provisions?

Wages and salaries are subject to collective bargaining for some federal employees, but not for others. For the House, factors such as an employer's discretion to set wages and salaries, as well as budget considerations, can affect the legal determination of whether wages and salaries are subject to collective bargaining for a House employer. Employee Advocacy can assist in a case-by-case exploration of applicable factors for each House employer.

Do House employees who experience retaliation related to a desire to organize under the FSLMRS have any protections?

Yes. The FSLMRS and the CAA contain antiretaliation provisions. House staffers may contact Employee Advocacy and inquire regarding their protections against retaliation for expressing interest in forming or joining a union, and other protections afforded House employees under the CAA.

When do House Employees' rights under the FSLMRS kick in?

The Office of Congressional Workplace Rights (OCWR) published its Federal Service Labor-Management Relations Statute regulations in the Congressional Record on May 16, 2022. There is a 60-day waiting period once the regulations have been published before they become effective. Thus, the regulations and the rights granted by them will become effective on July 18, 2022.

Can employees begin unionizing in their offices on July 18?

Yes. Employees can begin the process of unionizing even before July 18 by communicating with other employees in their Office and determining the level of interest of having union representation for staff in the office. July 18 is the first day that OCWR will begin accepting Form 1351D applications. Form 1351D is a Representation Petition asking OCWR to hold an election for a new or existing labor organization to represent a collective bargaining unit proposed as an appropriate bargaining unit of employees. The form can be found here. OCWR must receive a Representation Petition before it will schedule a union election.

How long will the unionization process take?

The unionization process consists of multiple steps to have a union recognized as the exclusive representative of a bargaining unit. How long the entire process will take depends on multiple factors. These include how long it takes to identify the appropriate individuals to constitute a collective bargaining unit and assemble an adequate showing of interest in unionization; time for the union to prepare the Representation Petition to file with OCWR; the length of any pre-election investigation by OCWR, which can address challenges, if any, made to the showing of interest in unionizing and the appropriateness of the proposed collective bargaining unit (CBU); challenges, if any, made to the status of the labor organization that files the Representation Petition; the length and complexity of any pre-election hearing; the resolution of any objections, if any, made to the election; and the resolution of any Unfair Labor Practices charges, if any, that have been filed in connection with the union petition and election effort. OCWR has indicated it will work diligently to process each union election petition.

What is the first step in the process of unionizing?

The first step in moving towards unionizing an office would be to determine the level of interest among eligible employees about having a union represent them. If there is at least 30% interest among eligible employees, then your office can move forward with requesting OCWR to hold a union election.

Who is eligible to join a collective bargaining unit?

Current employees of the House who do not hold a management or supervisory position and who do not substantially contribute to management and policy decisions are eligible to be part of a collective bargaining unit. Former employees and applicants are not eligible. OCWR will ultimately decide on the appropriateness of the CBU.

How do you know if someone is a supervisor?

Under Section 2421.3(i) and (j) of the OCWR FSLMRS regulations, there are definitions for "management official" and "supervisor." Factors examined to determine whether an employee is a supervisor or management official include responsibility for formulating and determining office policies, and responsibility or influence over personnel actions like hiring, promoting, disciplining and removing employees. OCWR will determine whether an employee is a management official or supervisor on a case-by-case basis.

What is an appropriate collective bargaining unit?

An appropriate collective bargaining unit (CBU) consists of employees within an office who share a clear and identifiable "community of interest," and whose grouping promotes effective dealings with the employer, including the efficiency of employer operations. Factors used to determine a "community of interest" include whether the employees are part of the same organizational component; support the same mission; are subject to the same chain of command; have similar or related duties, job titles and work assignments; are subject to the same general working conditions; and are governed by the same personnel and labor relations policies that are administered by the same office personnel.

Can staff from different Member offices join the same collective bargaining unit?

It is unlikely that staff from different Member offices will be able to join the same collective bargaining unit. Each Member office is a separate and distinct employing unit. They have different missions, different chains of command, and potentially different organizational units. We don't know yet whether OCWR will say that staff who work across multiple offices where work is performed for the same Member can belong to the same CBU. There are circumstances where it could be appropriate (see the factors in the FAQ above). OCWR will determine the appropriateness of any collective bargaining unit, including whether to consolidate two or more bargaining units (e.g., units in a Member's separate offices).

Can staff from District and D.C. offices join the same collective bargaining unit?

This is likely in most circumstances. As long as employees in the District office and D.C. office are part of the same organizational component; support the same mission; are subject to the same chain of command (e.g., the Chief of Staff is the decision maker for both); have similar or related duties, job titles and work assignments; are subject to the same general working conditions; and are governed by the same personnel and labor relations policies that are administered by the same office personnel, then they can be part of the same collective bargaining unit.

Can you "organize" during working hours?

Generally, no. Employers can maintain that conversations relating to "organizing" or "union matters" be held outside of working hours. However, the caveat is that employers must enforce this rule in a nondiscriminatory manner. An employer can prohibit employees from speaking about union-related issues during work hours only if the employer also prohibits employees from speaking about other non-work matters during work hours as well. If there is a period of time, such as during breaks, when non-work issues are discussed, the employer cannot prohibit employees from talking about a union. There is one exception: if an employee's participation in union proceedings is deemed necessary during work hours, then OCWR regulations say the employee shall be granted official duty time for such participation. (See OCWR Reg. Section 2429.13).

What can be bargained for?

Employees may collectively bargain for terms and conditions of employment. This typically includes work hours, benefits, and wages. What is not included are matters that are specifically governed by federal statute. Currently, wages and salaries for Congressional workers are not governed by federal statute. However, there may be some limitation on bargaining for wages if the bargaining would impose on certain management rights (e.g., to set a budget). Because of this limitation, OCWR, if asked, will determine on a case-by-case basis whether wages and salaries are subject to collective bargaining for a particular House employer.

What is Employee Advocacy's role in the unionization process?

Employee Advocacy provides no-cost counsel, advice, and representation with respect to unionization issues. Employee Advocacy can help determine whether a bargaining unit is appropriate, assist in determining whether an employee is a supervisor or manager, assist with the preparation and filing of a Representation Petition, assist with analyzing and filing Unfair Labor Practices allegations, and can otherwise help House employees exercise their rights under the labor and employment statutes. Employee Advocacy is not a union; nor does it have a role in establishing organizations as recognized unions with the U.S. Department of Labor. But, as described here, Employee Advocacy can assist employees with almost every aspect of the unionization process with OCWR.

Will Employee Advocacy be able to assist with collective bargaining?

Once an office has an established union, if the union wants Employee Advocacy to be its attorney in collectively bargaining with management, our office can assist. We can help determine which conditions of employment are possible to bargain for and advocate for those terms on behalf of the union in the negotiations to reach a collective bargaining agreement.