Lack of Top Leaders at the FLRA
It has been a while since three confirmed Federal Labor Relations Authority (FLRA) members were confirmed and working at the FLRA. While it may be an unknown agency to most federal employees, its decisions impact the federal workforce. Federal employee unions probably miss the full complement of the agency the most. The FLRA is the agency they routinely use for filing unfair labor practice charges against federal agencies.
The FLRA was established by the Civil Service Reform Act of 1978 (CSRA) to “provide leadership in establishing policies and guidance related to federal sector labor-management relations and with resolving disputes under, and ensuring compliance with, the Federal Service Labor-Management Relations Statute.”
Last Confirmed FLRA General Counsel Left in 2017
The FLRA has been a political football for years. For an extended period, the agency has been without a General Counsel.
When the former General Counsel, Julia Clark, resigned on January 20, 2017, Peter Sutton automatically became the Acting General Counsel as he was the Deputy General Counsel (a career position). He was the Acting GC until November 16, 2017—the statutory maximum under the Vacancies Act in the absence of a nominee for the General Counsel position.
There was no permanent General Counsel at the FLRA during President Trump’s term in office. President Biden is a staunch supporter of unions in general. His nominees have a strong union background.
The FLRA is considered to be a neutral agency in resolving labor disputes. While the reason a nominee is not confirmed may be unknown, a full career in partisan union activities may be a feature for some nominees never being confirmed.
In March 2021, President Biden announced the appointment of Charlotte A. Dye as the
Acting General Counsel of the Federal Labor Relations Authority (FLRA).
A decision by the Government Accountability Office (GAO) in February 2023 concluded that “we are reporting that the service of Charlotte A. Dye as Acting General Counsel from November 16, 2021, through the present day is in violation of the (Federal Vacancies Reform Act of 1998).”
The FLRA disagreed with the GAO. The FLRA contended a “springback” provision in 5 U.S.C. § 3346 allowed the Acting General Counsel to remain on the job. The arguments offered by the FLRA did not persuade the GAO that the FLRA was not violating the Vacancies Act.
Ms. Dye is a career federal employee with decades of experience at the FLRA. The agency still does not have a General Counsel, and Charlotte Dye is listed as the Deputy General Counsel.
What Happens With ULP Charges?
As there is no confirmed FLRA General Counsel, what happens with the unfair labor practices that this FLRA office would normally investigate and prosecute?
When looking at decisions from the FLRA in the last several years, there have been relatively few case decisions labeled “CA.” The CA designation refers to a complaint against an agency.
Instead, most recent case decisions are labeled “AR”—a designation that a case has been before an arbitrator and then appealed to the FLRA. Without a General Counsel, unions appear to have used arbitration to resolve some disputes rather than the more traditional path to the FLRA for handling unfair labor practices.
Taking a case to the FLRA is less expensive for unions. An arbitrator has to be paid, and both parties often pay the fee. Time spent by federal employees working as union representatives often falls under the “official time” umbrella. This means federal employees continue to receive full federal pay and benefits even when working for the union instead of the agency.
There is no arbitrator’s fee when the FLRA investigates and prosecutes a case. Also, an FLRA investigator will spend time investigating and prosecuting a case before an administrative law judge rather than the union preparing and presenting a case to an arbitrator.
President Trump nominated Catherine Bird to be the General Counsel of the FLRA on April 11, 2019. A hearing was held on July 16, 2019, before the Senate Committee on Homeland Security and Governmental Affairs. She was reported out of the Committee on July 24, 2019. Her nomination was returned to the White House on January 3, 2020. President Trump renominated Catherine Bird on February 12, 2020, and her nomination was returned to the White House without action on January 3, 2021.
President Biden nominated union attorney Suzanne Elizabeth Summerlin in June 2023. Senator James Lankford strongly opposed her nomination. In January 2024, the Senate returned the nomination to the president.
FLRA Members
Susan Tsui Grundmann is the FLRA Chairman and has been in that position since May 2022.
Colleen Duffy Kiko is the other current FLRA Member. She was the FLRA Chairman from 2017 until January 2021. President Biden nominated her to remain at the FLRA in September 2023 for a new 5-year term.
On April 17, 2024, Ms. Kiko submitted testimony to the Committee on Homeland Security and Governmental Affairs supporting her nomination for a new term.
Anne Wagner is the other nominee to fill a vacant position for the FLRA. Her nomination is also for a five-year term. She also submitted testimony in support of her nomination on April 17, 2024. She was most recently a deputy in the Office of Special Counsel.
There appears to be a good chance the Senate will confirm these nominees. If that does happen, it will be the first time there has been a full complement of FLRA Members since the Senate returned Ernest DuBester’s nomination to the president.
