The Federal Labor Relations Authority (FLRA) has a major influence on the operation of the federal government’s labor relations program. Through its decisions on unfair labor practices, negotiability decisions or decisions on the structure of bargaining units, FLRA decisions have an impact on labor-management relations in most federal agencies.
Role of the FLRA
The FLRA can also issue Statement of Policy decisions. In recent years, this has become more common and can be influential. This process helped enable the Trump administration to have a significant impact on federal labor relations.
For example, in July 2020, the FLRA issued a “final rule” on an issue based on a request for a general statement of policy from the Office of Personnel Management (OPM).
The new policy statement held that federal employees would be able to “initiate the revocation of a previously authorized dues assignment at any time that the employee chooses” after a one-year period after joining the union.
The practical result was a decision some federal employees probably appreciated as they are now able to more easily cancel their withholding of a union dues payment.
But, while it may have benefitted some federal employees, unions were angry and upset. A press release from AFGE described the decision as “another step toward the administration’s goal of busting unions and making it even harder for rank-and-file federal employees to speak up, defend their rights, and serve the American people.”
FLRA and Election of Joe Biden
The quick action by President Biden to appoint a new FLRA Chairman is not a surprise. Federal employee unions are major supporters of Democrats. They worked hard and provided support on behalf of then-candidate Biden throughout his campaign. The unions were continuously at odds with the Trump administration as President Trump was more aggressive in working to curb union influence and power.
No doubt, they were influential in having President Biden quickly take action with regard to the FLRA to regain their previous standing in the federal structure.
FLRA Leadership
Ernest DuBester is now the new FLRA Chairman. He has served on the FLRA as a Member since August 2009. He was previously the FLRA Chairman from January to November of 2013 and again in January of 2017. His extensive experience includes working as a union attorney with the firm of Highsaw & Mahoney, and legislative counsel to the AFL-CIO.
Colleen Duffy Kiko, who was the FLRA Chairman from September 2017 until January 21, 2021, and will remain as a Member of the FLRA. She has a long history with the FLRA and worked in the Washington Regional Office when the FLRA was initiated in 1979.
The third Member of the FLRA is James T. Abbott. He was nominated to become a Member of the FLRA by President Trump on September 2, 2017. He previously served as the Senior Executive Service (SES) Chief Counsel to three Chairmen of the Authority – Patrick Pizzella, Thomas Beck, and Dale Cabaniss.
There is obviously considerable experience among the current FLRA leaders. In addition to having served as FLRA Chairman, Colleen Kiko was the FLRA’s general counsel from October 2005 until March 2008. James Abbott was appointed as the FLRA’s chief counsel in 2007. Ernest DuBester has been a panel member since August 2009.
FLRA Terms of Office
FLRA members serve for five years, but Kiko and Abbott were appointed to fill existing terms. Kiko’s term will expire July 29, 2022. Abbott’s term expired on July 1, 2020. Although his term has expired, he may continue to serve until the end of the next Congress unless a successor is appointed.
In effect, the change means that there is currently one person on the FLRA, now the Chairman, who is a Democrat. The other two FLRA Members were appointed by President Trump.
It would be a surprise if President Biden does not move out to appoint a replacement for James Abbott in the near future. The appointment of a new FLRA Member will require Senate confirmation. No doubt, federal employee unions will work to have a new FLRA appointee seated as quickly as possible.
In recent years, DuBester’s name has largely been associated with dissenting opinions disagreeing with the decisions determined by the two Republican FLRA appointees. It remains to be seen what changes will occur in new FLRA decisions that may be issued. As noted, there are two Republican appointees who have generally been in agreement on decisions that have been issued.
The FLRA Chairman, now a Democrat, can have a significant impact on the agency. It remains to be seen what changes will now occur.
General Counsel of the FLRA: Still Vacant
The position of General Counsel (GC) at the FLRA is covered by the Federal Vacancies Reform Act (Vacancies Act). This position is vacant and has been vacant for some time.
Upon the resignation of the former General Counsel, Julia Clark, on January 20, 2017, Peter Sutton automatically became the Acting General Counsel. Sutton was the Deputy General Counsel (a career position). He was the Acting General Counsel until November 16, 2017—the statutory maximum under the Vacancies Act in the absence of a nominee to the General Counsel position.
Without a General Counsel, an unfair labor practice complaint cannot move forward to resolution as issuing a complaint is reserved to the discretion of the General Counsel. President Trump nominated Catherine Bird of Texas to fill the position. At the time, Bird was the Principal Deputy Assistant Secretary for Administration at the Department of Health and Human Services.
Senate Confirmation and Union Opposition
Federal unions opposed Ms. Bird’s nomination for the General Counsel’s position, in part because she has worked on behalf of agency management in contract negotiations with employee unions. Their opposition was apparently successful and the Senate did not confirm the nomination. The result is that no unfair labor cases have gone forward since late in 2017.
We can anticipate President Biden will quickly move to nominate a new General Counsel. The nominee will have to be confirmed by the Senate. That could happen quickly, but predicting what will occur in the nomination process is not possible.
