Decisions involving federal employees’ union representation will soon see more political involvement on the front end of the process, a change that upends more than 40 years of precedent.
The Federal Labor Relations Authority issued a pair of interim final rules on Tuesday, revising its internal operations for how it processes the labor-management cases. Once the rules take effect next month, the FLRA’s three-member board of political appointees will become involved in initial decisions on amending bargaining units, overseeing union elections and certifying new union chapters. That initial process is currently designated to regional directors — career federal employees — from FLRA’s Office of General Counsel.
“The FLRA is adopting these organizational changes to streamline its representation processes, reduce potential delays, and optimize workforce resources,” the authority wrote in a press release Tuesday.
The FLRA’s interim final rules bypass the government’s typical regulatory process. The change will become effective April 23, without requiring the agency to address any public comments. FLRA wrote that the change is not “substantive,” and therefore it does not need to issue proposed regulations.
But in a dissenting opinion of the interim final rules, Anne Wagner — the only Democratic member of the FLRA after President Donald Trump fired the authority’s former chairwoman — described the revisions as “the biggest changes to the FLRA’s representation case processing in nearly 43 years.”
Although she supported exploring possible changes to FLRA operations, Wagner urged the board not to rush the process.
“Using interim final rulemaking effectively tells our stakeholders that, although we welcome their comments, we will not necessarily consider them,” Wagner wrote, adding that FLRA’s interim rule does not detail how the new process will take shape inside the agency, “undoubtedly because we are still in the process of making those determinations.”
Under the current FLRA process, if either a union or an agency believes there was an error in a union representation decision, the parties can then appeal that decision up to the FLRA’s three-member panel.
Beginning next month, however, the three FLRA members will work with regional directors from the outset in most representation cases. But as FLRA noted in the interim final rules, the board still has the final say.
The authority said the change would expedite FLRA operations. And as a result of the consolidation, FLRA said the “burdensome” appeals process “will no longer be necessary.”
“The FLRA envisions a streamlined process in which representation matters are resolved through the collaborative efforts of the regional offices and the authority — rather than a strict separation of an initial decision by [a regional director], followed by a possible appeal to, and potentially duplicative decision by, the authority,” FLRA wrote.
The American Federation of Government Employees was quick to criticize the FLRA’s decision to circumvent the regulatory process by issuing the interim final rules this week.
“Make no mistake, these changes are significant and substantive,” AFGE National President Everett Kelley said. “They eliminate the non-partisan, non-political decision-making process that currently governs who can and can’t be represented by a union. We should recognize this for what it is — just another step in this administration’s efforts to politicize federal employment and make it easier to retaliate against those, including unions, that speak out against them.”
Suzanne Summerlin, an attorney who specializes in federal employment law, argued that the FLRA’s current two-step procedure, which has been in place since 1983, maintains an important balance in the process. She warned that the forthcoming change would be yet another way of “injecting politics” into federal personnel processes, leading to a “chilling” effect on unions and employee rights.
“It was a process designed to be fair and democratic — to have elections run in ways that are confidential for the people who are voting, and that give a result that reflects the will of the people in the bargaining unit. That’s best done with apolitical civil servants at the helm in the initial phase,” Summerlin said. “Political appointees get their say in the process as well, but the authority will always be tilted slightly one way or the other toward the presidential administration in power.”
If you would like to contact this reporter about recent changes in the federal government, please email drew.friedman@federalnewsnetwork.com or reach out on Signal at drewfriedman.11
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