Editor’s note: This story was updated to reflect the latest count of bargaining units across government.

Federal agencies are being encouraged to double check — and correct, if needed — the union eligibility status of employees to ensure no one has been improperly excluded from representation.

New guidance issued by the Office of Personnel Management this month builds on recommendations by a White House task force for federal work and nudges agencies to review labor policy, especially if the transition to telework created new questions or confusion about how to classify positions.

“As the nation’s largest employer, the federal government can and should lead by example in encouraging worker organizing and collective bargaining,” OPM said in the Jan. 26 memo. “Agencies and unions are strongly encouraged to work together on identifying which positions should be included or excluded from bargaining units.”

About 56% of non-postal federal employees, or more than 1.2 million workers, are represented by labor unions in some 1,800 bargaining units. Of those, most are in non-supervisory positions. The White House has issued a slew of recommendations thus far supporting the choice to organize at the federal level, as nationwide petitions for union representation went up 53% across all sectors.

Not all federal employees can be covered by a bargaining unit.

By law, confidential employees, those in supervisory or management roles, and those whose work is sensitive to personnel or national security are generally excluded. For the rest, the Federal Labor Relations Authority stipulates eligible employees have a “clear and identifiable community of interest,” meaning the members are similar to each other in mission, working environment or chain of command, among other factors.

Federal employees have the right to organize and bargain collectively, but they cannot strike. The president can also exclude a federal agency or subdivision from coverage depending on the nature of that employee’s work.

Bargaining unit certifications frequently describe bargaining units in terms of geography — a metric that may have changed with remote work. In that case, agencies should review certifications and petition for clarification if necessary, OPM said.

The National Treasury Employees Union “supports the guidance from OPM that federal agencies undertake a thorough review of their workforce to determine if any positions are wrongly excluded from the bargaining unit,” said President Tony Reardon to Federal Times. NTEU represents more than 150,000 civilian employees across 34 agencies.

Federal unions, like NTEU, often do their own audits at the agencies they represent so they can contest any exclusions that they feel were improper.

“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,” Reardon said.

A few agencies have already begun reviews.

The Department of Health and Human Services, which is roughly 40% unionized, said it plans to check bargaining classifications in all of its 20 units. The agency also said it will develop job aids and training materials to standardize interpretation of bargaining unit exclusions, according to the task force’s 2022 report to the President.

The Pentagon is taking similar steps, it said in the same report, to review its bargaining unit codes for inadvertent exclusions. After that, the Department of Defense plans to analyze rejected employees for trends or potential barriers.

OPM and the White House have handed down guidance, but agencies are also responsible for assigning status codes to each employee and documenting it.

“OPM acknowledges that agencies have various procedures for determining and inputting BUS codes into a position data record,” its Jan. 26 memo said. “With this in mind, agencies are strongly encouraged to include the agency labor relations office in its procedures for determining the appropriate BUS codes to assist with accuracy and compliance.”

The ultimate authority lies with the FLRA, which will sort out further disputes.

Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.

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