The National Treasury Employees Union wants a clearer definition for who can file labor-management disputes with the Federal Labor Relations Authority.
NTEU is concerned about FLRA’s efficiency as the authority faces a backlog of 314 cases. In an effort to improve efficiency, NTEU submitted a proposal that would limit hearings only to organizations affiliated with the federal sector.
FLRA manages the federal-labor relations program and resolves agency and union disputes.
The vague wording of the authority’s regulations gives groups unaffiliated with the federal workforce an opportunity to submit requests, weakening the voice of the federal workforce, NTEU National President Tony Reardon said in a May 17 press release.
“During the last administration we saw how private, anti-union forces outside of government misused the FLRA,” Reardon said. “The FLRA is supposed to be an independent, neutral arbiter of labor-management bargaining disputes in the federal workforce, not a playground for ideologues who want to weaken federal workers and their unions. We respectfully request the FLRA amend its regulation and ensure that its own process remains focused on what is best for the federal government and its workers, not political interlopers with an agenda.”
Federal News Network reached out to FLRA and the authority declined to comment, since the petition is still pending.
The ambiguous language unintentionally opens the floor to other types of petitions.
“It is clear from the structure and purpose of the statute that the phrase was not intended to extend to any and every ‘lawful association,’ including those that have nothing to do with federal employment labor relations,” NTEU stated in its May 16 petition to FLRA.
But former FLRA Member James Abbott said that although he agrees that some pieces of FLRA’s statute should be revised, some of those associations actually do have grounds to file requests.
“The reason for the regulation that allows interested parties to file a request for a policy statement is that every aspect of collective bargaining in the federal government is paid for by the American taxpayer,” Abbott said in an interview with Federal News Network. “It is important that outside agencies that are in essence representing the interest of the taxpayer should be permitted to request or comment on policies of the Federal Labor Relations Authority.”
Under the proposal, NTEU said FLRA could conserve its resources by denying requests outright without spending more time to reach a decision. The authority may also see fewer requests from unaffiliated associations in the first place.
But Abbott said that although many petitions are filed, very few are actually acted upon by the authority.
“The ones that are addressed are ones that raise issues or questions that have broad applicability and would actually preclude any number of grievances in the future,” Abbott said. “By clarifying the issue or question, the parties would have an answer to the matter that was in dispute before them. It would resolve many such cases so they would not have to be brought by federal unions as grievances.”
NTEU’s proposal comes in response to a couple of unaffiliated organizations getting an audience with FLRA in the past few years.
For example, NTEU said a request decision from Aug. 19, 2020, a dispute over official time for lobbying activities, exemplifies the types of cases that should not come to the authority.
At the 2020 hearing, FLRA Member Ernest DuBester dissented, saying the majority was “accommodating a request from an organization that is neither a union nor an agency subject to our jurisdiction.”
The petition also comes just after FLRA added a new member to its three-person panel. On May 12, the Senate confirmed Susan Tsui Grundmann in a 50-49 vote along party lines. She replaced Abbott, a former FLRA member.
But two other nominations for FLRA are currently on hold. The Senate Homeland Security and Governmental Affairs Committee deadlocked at a March 30 hearing over both Kurt Rumsfeld, President Joe Biden’s nominee for general council, as well as DuBester, who was nominated for another term as member.
The FLRA has not had a Senate-confirmed general counsel since January 2017, and did not have an acting general counsel between November 2017 and March 2021, Rumsfeld said.
“This has resulted in a significant backlog of unfair labor practice charges for which complaints could not be filed and litigated in the absence of a General Counsel, as well as a backlog of appeals from dismissals of ULP charges which could not be decided,” Rumsfeld wrote in his testimony.
Taking labor disputes directly to court
In a separate effort to promote government efficiency, NTEU is asking the Supreme Court to let some federal labor disputes go directly to court, instead of through administrative agencies.
“It is important that NTEU have the right, when necessary, to ask a federal judge to issue injunctions or declare certain executive branch actions unconstitutional, which agencies like the FLRA are not empowered to do,” Reardon said.
The union said courts of appeals incorrectly channel some district-court claims through an administrative process, rather than going straight to court.
The “lengthy process” leaves federal employees vulnerable to potentially illegal actions in the workplace, Reardon said.
“Courts are supposed to consider three guideposts to determine whether a claim must be channeled to an administrative agency: whether channeling ‘could foreclose all meaningful judicial review,’ whether a litigant’s claims would be considered ‘wholly collateral to a statute’s review provisions’ and whether the claims if pursued first before an administrative agency would be ‘outside the agency’s expertise,’” NTEU wrote in the May 16 proposal.
A recent case exemplifies the importance of the issue to the union, NTEU said. When the union challenged a May 2018 executive order, an appellate court declared that the union first had to pursue its claims on a case-by-case basis through FLRA.
“The Supreme Court has an opportunity to clarify the ‘channeling process’ and we urge it to do so in a way that protects the rights of plaintiffs to seek judicial relief,” Reardon said.