Questions for the Confirmation of the Chair of the FLRA

By on January 23, 2013 in Current Events with 11 Comments

Some who read my articles may have noted that I disagree with the rulings of the FLRA from time to time.  If the Chair of the FLRA is up for confirmation, perhaps a hearing on that confirmation offers an opportunity to review FLRA’s policies and decisions during the past four or five years.  Unfortunately, few legislators can devote the needed time to get up to speed on such an arcane business as Federal labor relations when such meaty issues as debt ceilings and government defaults are on the table.

So I thought I’d put together a list of questions to ask to get a richer understanding of the FLRA and its policies in the context of its law and the intent of that law by the Congress which enacted it.

  1. In a number of appeals from FLRA decisions, the D.C. Circuit Court of Appeals has found that the Agency has exceeded its authority by interpreting laws other than the Federal employee labor statute.   In light of these reversals, why has FLRA recently decided to interpret the Inspector General Act appearing to expand union rights not clearly intended by that Act?
  2. In cases where the interpretation of a statute or government-wide regulation other than those FLRA administers are at issue in cases before you, why don’t  you routinely seek an amicus brief from the Agency responsible for that law or regulation before ruling to avoid a subsequent  interagency court battle on the matter?
  3. In a case involving the National Labor Relations Board, that Agency was forced to commit an unfair labor practice to obtain review of an FLRA decision merging employees in the NLRB into one bargaining unit despite the NLRB’s claim that such a merger violated the National Labor Relations Act.  The D.C. Circuit decision in the case was critical of the FLRA’s reasoning.  In future, can you assure the Congress that the taxpayer will not be asked to fund interagency disputes provoked by unwillingness by FLRA to defer to another Agency’s law?
  4. In recent years, the FLRA has found numerous union proposals that FLRA found to violate management rights to be “appropriate arrangements” thus expanding union bargaining rights.  Do you believe in expanding union bargaining rights as a matter of general policy?
  5. Regarding the doctrine of Agency Head Review in the Federal employee labor statute, FLRA during your term had found that if local parties make an agreement, the Agency head may not review it despite the fact that it is contrary to law.  For the first thirty years of the statute, Agency heads were empowered to ensure that bargaining at a lower level was consistent with law, why did you and the other majority member advance this change in policy?
  6. In recent years, the FLRA has revised its regulations and made decisions to widely expand an arbitrator’s authority.  As things stand now, an arbitrator can order an Agency to act contrary to the statute and if, at the hearing, an Agency advocate did not argue that exact point, the illegal award would be and has been endorsed by your Agency on appeal. Is it your intent that an illegal act be permitted merely because an Agency advocate has made a mistake or was unable to foresee the arbitrator’s finding? If so, why?
  7. In recent years, the D.C. Circuit Court of Appeals found in a significant case involving the Bureau of Prisons that “Because the Authority unreasonably concluded the mission critical standard is not “covered by” the collective bargaining agreement between the Bureau and its employees’ union, we grant the petition and vacate the Authority’s decision.” In that case, the Court also said that: “We will therefore reject any construction of a collective bargaining agreement that treats it as but “a starting point for constant negotiation over every agency action.”  Why did the Court have to instruct the FLRA to uphold the finality of a collective bargaining agreement?
  8. In matters such as were involved in the Prisons case, it is clear that Agency changes involving statutory management rights are frequently held up for years by union bargaining requests over relatively minor matters.  How does this advance the Federal employee labor law’s goal of a more efficient and effective government?
  9. In the last twenty years, FLRA case law has moved back and forth with the varying administrations favoring unions or advancing more rights based approaches, this has affected how the parties with which FLRA deals perceive its neutrality.  What is your view on whether the FLRA should present a neutral face or more closely represent the administration in office?
  10. Under the current law, virtually all of the time of Federal employees serving as union representatives, their offices and operating costs are paid for from taxpayer funds.  Some of these unions own office buildings and have large bank accounts.  Do you believe that should be the case indefinitely? If not, when should unions bear a more substantial part of these costs especially in these tough economic times?
  11. The FLRA has upheld the paying of official time for Federal employee union representatives to lobby Congress.  If they were not union representatives, such actions would violate the law.  How do you justify the use of taxpayer funds to support such union lobbying without express authorization by the Congress?
  12. If, indeed, a senator with a less aggressive view of expanding government employee union rights were to ask why he or she should vote for your confirmation, what would be your answer?

I believe the above represents a factual statement of the state of the business.  I know some may disagree with asking these questions at all.  I certainly have no power to induce such a dialog as these questions might produce but would like to hear the answers in any case.  As always, if one can discern an opinion in the above it is mine alone as presented here.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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