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FLRA Control Returns To Democrats After Senate Confirms Biden Nominee

In a 50-49 vote, the Senate has confirmed Susan Tsui Grundmann as a Member of the Federal Labor Relations Authority (FLRA).

One Republican, Senator Lisa Murkowski (R-Alaska) voted in favor of her nomination. Senator Patrick Leahy (D-Vermont) did not vote. The other 49 Senate Democrats voted in favor of the nomination.

She was previously nominated by President Obama and served as a Member and Chairman of the Merit Systems Protection Board (MSPB).

Federal employee unions will celebrate the confirmation. Grundmann has a strong union background having been the General Counsel to the National Federation of Federal Employees (NFFE), represented the United Department of Defense Workers Coalition, which consists of 36 labor unions, and represented federal employees from a number of federal agencies. More recently, she was the Executive Director and Chief Operating Officer of the Office of Congressional Workplace Rights.

As president, Donald Trump had nominated two people to serve on the MSPB. They were not confirmed by the Senate and the agency has been without a quorum since Grundmann resigned in January 2017.

Grundmann will replace a Republican member of the FLRA, James T. Abbott, who has been serving as a holdover after the expiration of his term at the agency. Ernest DuBester will remain as the FLRA Chairman.

Colleen Duffy Kiko is the third member of the FLRA. She has a long history with the agency. She worked for the FLRA’s predecessor organization and was with the FLRA when it was formed and has served as General Counsel and Chairman of the FLRA.

Unions Unhappy With FLRA Decisions Under Trump Administration

Federal employee unions were often unhappy with and sought to overturn decisions from the FLRA under the Trump administration. Here are two of the issues that were addressed by the FLRA during that time.

Canceling Dues Payment to a Union

For example, the FLRA issued a “final rule” on an issue based on a request for a general statement of policy from the Office of Personnel Management (OPM). The result was a decision that enabled some federal employees to more easily cancel their withholding of a union dues payment.

Bargaining on a Zipper Clause

The FLRA also expanded the scope of bargaining by requiring bargaining on a “zipper clause” in federal labor relations.

A zipper clause is a provision in a labor contract between an agency and a union under which both parties waive the right to demand bargaining on any matter not covered by the contract. The restriction on future bargaining is usually in effect whether or not the other subject was contemplated when the contract was negotiated or signed.

A zipper clause limits future bargaining obligations. Generally, an agency wants to save the time, expense, and hassle of having to engage in more negotiations with a union. A zipper clause is a way to minimize or eliminate additional bargaining.

In 2020, the FLRA wrote:

[W]e clarify that the Statute neither requires nor prohibits midterm bargaining, and that all proposals concerning midterm bargaining obligations (including zipper clauses) are mandatory subjects for negotiation that may be bargained to impasse.

Bargaining on Trivial Issues

The FLRA also addressed the topic of bargaining on trivial issues in agencies. On this topic, the FLRA wrote:

Because the Authority never provided a rationale for departing from the substantial impact standard (which was applied under EO 11,491) and because the de minimis standard is inconsistent with the purposes of the Statute, the Authority finds that a substantial impact test is the appropriate means for determining whether a change to a condition of employment is significant enough to trigger a duty to bargain. Specifically, an agency will not be required to bargain over a change to a condition of employment unless the change is determined to have a substantial impact on a condition of employment.

With the addition of another Democrat at the FLRA with a background of working for unions, federal agencies can anticipate a change in the direction from that which emerged under the Trump administration. The approach will be to expand bargaining and the role of unions in agencies rather than focusing on the prior approach of seeking to limit the role of unions and emphasizing “efficient government”.

© 2022 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

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