The ongoing legal fight in the federal labor relations program goes on—the issues and venue may change, but the underlying antagonism between federal employee unions and the administration continues to be displayed in various ways.
For example, an investigator for the Federal Labor Relations Authority (FLRA) has recently concluded that there is sufficient evidence to move forward with an unfair labor practice (ULP) to consider a union’s argument that the Social Security Administration illegally intimidated officials with the Association of Administrative Law Judges (AALJ).
While most of the facts in the case are not yet public as no substantive case decision has been issued, the underlying dispute may be based in part on the agency’s enforcement of President Trump’s Executive Order restricting the power of unions in the federal government. This is one of a number of cases now on hold.
An injunction against enforcing the Executive Order was recently lifted. We can expect to see a number of cases arise as a result of federal agencies enforcing this Order as the unions are likely to use many or most of the opportunities to challenge their implementation. At a minimum, the unions are hoping they can delay full implementation until the election results of 2020 when it is possible there may be a change in administrations. If a Democrat is elected as our next president, some of these policies would change and, presumably, the unions would love to again carry on with a Democrat in the White House.
ULP Cases Stalled
The initial finding in this new case involving the AALJ does not mean the allegation has been fully litigated. It would normally mean the case moves to the next step and ultimately leading to a decision by the FLRA of whether an unfair labor practice did occur.
In practice, the case is not going anywhere for the time being. Currently, according to the Director of Legislative Affairs for the FLRA, Richard Burkard, there are 277 cases awaiting action by a General Counsel for the FLRA. The case involving the latest issue with the AALJ may be one of the 277 or it may be number 278.
No General Counsel at the FLRA
As of today, there is no General Counsel at the FLRA. The job has been vacant since November 16, 2017.
The Office of General Counsel is the investigative and prosecutorial component of the agency. Catherine Bird has been nominated to fill this position but no action has been taken by the Senate on the nomination.
Ms. Bird currently serves as the Principal Deputy Assistant Secretary for Administration at the Department of Health and Human Services where she oversees components including Human Resources, Information Technology, Real Estate and Logistics, and Acquisition.
Predictably, and perhaps ironically, federal employee unions oppose Ms. Bird’s nomination for this position, in part because she has worked on behalf of agency management in contract negotiations with employee unions.
Unions Oppose Nomination and No ULP’s Moving Forward
In effect, the union’s opposition to her appointment has likely slowed down her confirmation as the General Counsel at the FLRA. This means unfair labor practices filed by unions against agencies cannot be prosecuted and are sitting somewhere in the FLRA waiting for the confirmation process to be completed.
It will take some time for the 277 cases waiting for the appointment of a General Counsel to be processed. And, the longer the process takes, new cases will be added to the queue, effectively diluting the enforcement process of the federal labor relations statute.
We can look forward to a rash of cases being pursued by federal employee unions and numerous allegations playing some role in the upcoming presidential election. If President Trump wins another four years in office, the federal unions can reasonably anticipate a declining influence and less relevance in the federal workplace. If a Democrat is elected however, their influence will rise again. Federal employees can obviously expect to see attempts to influence their vote as the election heats up and, predictably, we will see allegations involving Hatch Act violations being filed by various interests.