Filling FLRA General Counsel Position Has Been a Problem
Legally filling the job of General Counsel at the Federal Labor Relations Authority (FLRA) has been problematic.
Under the Vacancies Act, there was an Acting General Counsel through November 16, 2017. After that, the job was not filled for more than three years.
As a result of the vacancy, a backlog of hundreds of unfair labor practice appeals and complaint recommendations were pending. That probably made life easier in federal agencies as unfair labor practices are almost all filed by unions and were not being processed.
In effect, go ahead and file the complaints. There will be a resolution or an answer to the ULP charge that has been filed sometime in the future. As there was little movement to resolve the issue, it may be the Trump administration was not concerned about the situation which made federal employee unions unhappy.
On March 24, 2021, President Biden announced the appointment of Charlotte A. Dye as the Acting General Counsel of the FLRA. That did not fully resolve the issue. The Government Accountability Office (GAO) concluded in February 2023 that she was illegally serving in the position since November 26, 2021.
As of June 11, 2023, the FLRA website still lists Ms. Dye as the Acting General Counsel. That may be because the FLRA did not agree with the GAO conclusion.
[U]ntil President Biden appointed Ms. Dye to act as General Counsel on March 23, 2021, there were no nominations to the position for purposes of calculating the time limitations…. Therefore, according to FLRA, the two nominations that occurred prior to Ms. Dye’s designation should not count as nominations to the position for purposes of section 3346(a)(2), making Mr. Rumsfeld’s nominations the first and second nominations under such section.
Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: General Counsel, Federal Labor Relations Authority
The GAO took the FLRA’s argument into consideration but concluded, “Ms. Dye’s service as Acting General Counsel from November 16, 2021, through the present day violates the Vacancies Act’s time limitations.”
The organizational chart for the agency has not changed with regard to the Acting General Counsel since the GAO’s decision finding the appointment was illegal. It is not clear if the Acting General Counsel was curtailing any official activities since the GAO decision was issued. Only one unfair labor practice (ULP) decision has been issued in 2023 based on the cases reported on the FLRA website and the complaint for that case was issued in 2020.
New Nominee for FLRA General Counsel
On June 2, 2023, President Biden announced he would be nominating Suzanne Elizabeth Summerlin to be the next FLRA General Counsel.
Consistent with the philosophy of the Biden administration in making appointments, Ms. Summerlin has held a number of positions for unions. She is currently Deputy Executive Director and Deputy General Counsel for the Federal Education Association. She was previously Associate General Counsel for the National Federation of Federal Employees.
On June 6, 2023, the nomination was received in the Senate and referred to the Committee on Homeland Security and Governmental Affairs.
The nomination is subject to confirmation by the Senate.
Nancy Anderson Speight Nominated for FLRA
There are currently two members of the FLRA: Susan Tsui Grundmann and Colleen Duffy Kiko. While this enables the FLRA to issue decisions, the two current members have to agree on the issue before them. That does not always happen. Adding a third member will likely result in more decisions emanating from the FLRA.
Speight is currently the Deputy Assistant Secretary of Defense for Civilian Personnel Policy. She was previously the Atlanta Regional Director of the FLRA from 2001-2009. She has held multiple positions within the FLRA’s Office of the General Counsel and worked with the Department of Labor on federal labor relations issues before the FLRA was created by the Civil Service Reform Act of 1978.
