I found it somewhat disheartening that the newest member of the Federal Labor Relations Authority (FLRA) was recently confirmed by a 50-49 vote of the Senate. Having gone through Senate confirmation myself twice, I was concerned to see such a close vote for someone who had been confirmed by the Senate in the past and has worked for the legislative branch and presumably would be known to some Senators.
My first thought was that I was lucky to have gone through the confirmation process when what was important was whether you could do the job and you had not done anything egregious that showed up on the extensive background check you went through.
I still remember a person I worked for was working in Alexandria, Egypt while I was going through the confirmation process and an FBI agent from the U.S. Embassy in Cairo went to Alexandria to interview him. As the FBI agent who did a final interview with me said, “You should have no problems with the background process because you lead a boring life and boring is good when it comes to background checks”.
Since the creation of the FLRA in 1978, there have been several times when various positions within the FLRA which were to be filled by political appointees were vacant and sometimes for long periods. This latest near 4-year period without an appointed General Counsel must be one of the longest for that position.
Further at various times during this period, there was not an Acting General Counsel. When there is no General Counsel, Acting or Appointed, there can be no prosecution of unfair labor practice complaints. Since most unfair labor practice complaints that are prosecuted allege management violated the law, not having a General Counsel is not necessarily disheartening to you if your Administration favors management. Not filling positions can be politically advantageous if filling them will result in decisions you may not like.
The FLRA membership during the past Administration undertook to overturn numerous long-standing precedents, many of which had existed for many years. The vehicle it used were Statements of Policy and Guidance.
Interestingly enough, one of the long-standing precedents this FLRA overturned with a Policy Statement was requested by a Right to Work organization, not a party who is subject to the decisions of the FLRA but a group that has a specific point of view with respect to all unions. Even though this organization “had no dog in that hunt” (you have to understand I live in Alabama now), the FLRA accepted the request for a Policy Statement because it apparently was interested in giving an answer which just happened to be consistent with the requesting Organization’s point of view. Changing long standing precedent can be very disruptive to federal labor relations especially when a large number of these disruptive decisions are later overturned by the Circuit Courts of Appeal which is what has happened.
I have no problem with the FLRA exercising it’s a right to dictate what federal labor relations is or should be and even taking questions from what I personally may consider a dubious source. However, when it takes this route, it has the great potential to lose its credibility as neutral.
My concern is when it so obviously exercises its discretion in favor of one half the equation in labor relations, how does it expect to be considered even handed? My concern is not the decisions of the FLRA. I certainly lost cases before the FLRA when I was General Counsel. My concern is that the decisions must be well thought out, well written and not show the least bit of prejudice. The Circuit Courts of Appeals overturned many of these decisions based on the FLRA not having legal support for the decision issued to the point in some cases the rationale for the decisions was considered arbitrary and capricious.
Congress has shown, to a certain extent on both sides of the aisle, that it understands that who the political appointees are can easily change the direction of federal labor relations. No longer does there seem to be concern that the FLRA comes up with the right answer, the Congress wants to preordain that it come up with an answer the Congress wants based on the appointee’s predilection towards management or unions. We have gone from the days when it was important that a neutral not only appear to be neutral but in fact act as a neutral, to a day where one side or the other just wants what it wants.
Back in my day, as part of the confirmation process, I met with various management and union leaders in the federal sector. One meeting always stands out. The head of a very large federal union said to me after he asked all his staff to clear the room and the doors were closed: “What are you going to do for me?”. I thought for a moment and said, “I am going to do the right thing based on what the law requires.” He said “Ok” and that was that. Nowadays it might not be so simple.