A coalition of federal unions is suing the Federal Labor Relations Authority over plans to involve politically appointed board members in all labor representation decisions — a change the unions warn will politicize a process that has been working effectively for decades.
The new lawsuit from eight unions, collectively representing more than 1 million federal employees, alleges multiple violations of the Administrative Procedure Act. The plaintiffs argue that FLRA’s March 24 interim final rule violated the law by circumventing a required notice-and-comment period, despite the rule constituting a substantive change.
Starting April 23, FLRA’s interim final rule is expected to transfer the authority for determining the size and shape of bargaining units, overseeing and certifying union elections, and deciding on decertification petitions.
The unions are seeking to stop FLRA’s planned changes from taking effect. An FLRA spokesperson declined to comment on the new lawsuit.
Currently, FLRA regional directors, who are career federal employees, make determinations in cases involving federal employee representation. But the interim final rule would instead directly involve the FLRA’s three politically appointed members in those decisions, altering a process that has been in place since 1983.
In its March 24 rule, FLRA wrote that the changes would streamline and expedite FLRA operations. The authority stated that the change is not substantive and therefore does not require a notice-and-comment period for collecting and responding to feedback from stakeholders and the public.
But in their lawsuit, the unions argued that these are “dramatic changes” and must go through a notice-and-comment period.
“Despite the sweeping nature of this change, the FLRA gave only the most threadbare and unconvincing explanation for its action,” the lawsuit states. “This dramatic overhaul of how federal employees and their unions can obtain exclusive representation rights at agencies and the additional statutory labor rights that flow from such representation will inevitably impair and delay their ability to exercise those rights.”
The American Federation of Government Employees, one of the plaintiffs in the lawsuit, said FLRA’s interim final rule attempts to minimize a drastic change. AFGE said the rule, which set a 30-day timeline before taking effect, was “unjustified” and “rushed.”
“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.”
In the lawsuit, plaintiffs further argued that there was little explanation of how or when the authority would make the process changes. For instance, the FLRA’s interim final rule states that regional directors will remain involved in representation petitions. But the unions argued there is “little clarity as to how this will work in practice.”
“It is apparent, however, that regional directors will no longer be independent decisionmakers,” the lawsuit states.
The unions also questioned the speed of FLRA’s implementation of the changes, expected to occur April 23. The lawsuit pointed to a dissenting view of FLRA member Anne Wagner, who urged the authority not to rush the changes, as it is not yet determined how the new process would work.
Wagner further described the planned revisions as “the biggest changes to the FLRA’s representation case processing in nearly 43 years.”
The plaintiffs also argued that FLRA’s changes are significant in the context of upcoming agency reorganization plans, such as those at the Forest Service. Often, major agency restructurings impact federal employee representation, the unions said.
“Agency reorganizations often lead to new representation petitions that must be processed, including petitions to clarify bargaining units or consolidate bargaining units,” the lawsuit states.
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 appeal that decision up to the FLRA’s three-member panel.
But under the interim final rule and as a result of consolidating the process, FLRA said the “burdensome” appeals process “will no longer be necessary.”
The unions, however, argued that the two-level appeal process is beneficial, and that removing the possibility of appeals — which are already relatively rare occurrences — would cause further problems.
“While most regional director decisions never reach the authority on an application for review, this two-stage system provides a crucial backstop for review to reduce error and maintain trust in the federal labor relations system,” the lawsuit states. “Eliminating the possibility of a second layer of review will increase errors in the representation process, reduce accountability for poor decision-making and result in decreased trust in the process.”
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