In the early days of the labor law, FLRA made it quite clear that former employees or even those who had never been employed by a federal agency could hold any representational role in the union’s leadership. They did not get official time, but they had virtually any other right a bargaining unit employee would have in that role. However, thanks to the vastly increased emphasis on security, FLRA just made it harder for those not currently working for the agency to fulfil their union representation rolls. It has authorized agencies to require non-employees submit to an extensive background checks before he/she is given a PIV, CAC or other card authorizing him/her to access agency buildings and files. Here is what the Authority wrote in response to an agency’s objection to an arbitration award giving a non-employee access to agency files:

Finally, the Agency alleges that the PIV-card remedy is contrary to law and government‑wide regulations, specifically Homeland Security Presidential Directive 12 (HSPD‑12), a memo from the Office of Personnel Management (OPM) providing credentialing standards for PIV cards (OPM Memo), and § 7106(a)(1) of the Federal Service Labor‑Management Relations Statute (the Statute).  Because the Arbitrator directed the Agency to issue a PIV card without regard to the credentialing standards in the OPM Memo – and there is no dispute that the standards in the OPM Memo are government-wide regulations, for purposes of our review – we set aside that remedy as contrary to government-wide regulations.  As a result, we find it unnecessary to resolve the Agency’s argument that the PIV-card remedy violates § 7106(a)(1) of the Statute.  And as that was the Arbitrator’s sole remedy for his finding of a computer-access violation – and we have left that finding of a violation undisturbed – we remand the award to the parties for resubmission to the Arbitrator, absent settlement, to formulate an appropriate, alternative remedy, if any. See Dept. of Veteran Affairs and AFGE, local 1594, 70 FLRA 1 (2016).

Of course, just as in the world of physics where for every action there is an equal and opposite reaction, agencies should expect a few here if they make it impossible for union representatives to see data available to all other employees. For example, the union rep denied access to on-line files could simply ask the agency to print out all the data and give him a copy—along with appropriate sanitization. The first time the agency releases private information to the non-employee without PIV access that should have been sanitized the union will likely demand a remedy, including appropriate discipline of the management official who erred.

So, we will close expressing our hope that the parties figure out how to get through this easily.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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