Federal labor investigators last year approved a complaint against the Education Department for allegedly trying to bust the union that represents its employees. But the tiny agency that enforces government workers’ rights can’t do anything about it because
The Federal Labor Relations Authority has received more than 6,500 unfair labor practice charges from government workers and their unions in the two-plus years since it last had a Senate-confirmed general counsel, according to information obtained by Bloomberg Law. Although investigators are continuing to review those charges, lawyers can’t file complaints to stop federal agencies from violating labor laws without someone in the general counsel’s office to sign off on them.
“It’s completely unprecedented,” William Wiley, a San Francisco-based attorney and former chief of staff to the FLRA general counsel in the George H.W. Bush administration, told Bloomberg Law. “Management has the authority to file unfair labor practice charges but they rarely do, so it’s the union guys sitting on the fence.”
The backlog comes as the Trump administration has moved to curb government workers’ organizing rights and trim some federal spending fat. The president in May issued a trio of executive orders making it easier to fire federal workers, requiring agencies to take another look at collective bargaining agreements, and limiting the amount of work time government employees can spend on union matters. A federal judge later blocked significant portions of those moves, a decision that’s currently on appeal.
White House officials and their supporters say those moves will help ensure that taxpayer money is spent more efficiently. They point out that federal workers, unlike those in the private sector, are already protected by federal pay and benefits laws.
“In government, you already have civil service rules that give workers lots of protections,” said Chris Edwards, director of tax studies at the Cato Institute, a libertarian think tank. “I don’t know that you need another layer of union rights on top of that.”
FLRA employees themselves have also seen their collective bargaining power evaporate in recent months. Chairwoman Colleen Kiko (R) in December told the union that has represented agency employees for nearly 40 years that the FLRA will no longer negotiate with the group.
White House spokeswoman Lindsay Walters didn’t respond to Bloomberg Law’s requests for comment. FLRA Executive Director William Tosick declined to comment.
Julie Clark, who held the general counsel job in the Obama administration, left the FLRA in January 2017 when her term expired. She was temporarily replaced by acting general counsel Peter Sutton until November 2017. Career FLRA lawyers have been rotating in as the temporary deputy general counsel since that time. The White House is now barred by federal vacancies law from installing someone in an acting general counsel position until it first nominates a permanent pick for the job.
Labor Beef at Education Department
Union officials say the Education Department and other government agencies are pushing to include some of the stalled executive orders’ limits in new collective bargaining agreements. There’s no one at the FLRA to hear challenges to those moves until Trump nominates a general counsel.
“We are in a lawless era,” Holly Salamido, the president of a union representing Department of Housing and Urban Development workers, said. “Everybody knows at this point that the union can’t even go to the FLRA.”
FLRA investigators last year found that the Education Department refused to negotiate a collective bargaining agreement with the union representing department employees. Officials instead forced a new contract on employees that stripped them and the union of rights included in prior agreements. They say federal law gave the department the power to implement the new contract because the sides reached an impasse during contract negotiations.
The American Federation of Government Employees, the union representing department employees, says agency officials simply refused to negotiate. Federal government workers don’t have a legal right to strike, so their only options are to file a charge with the FLRA or pursue arbitration.
Education Department spokesman Jim Bradshaw declined to comment.
Among other changes, the new contract limits the kinds of workplace changes that the Education Department has to negotiate with the union and the kinds of actions employees can challenge by filing grievances. Department officials used the new provisions to later revoke telework privileges for department employees and to consolidate offices within the agency, according to the union.
The union has filed additional unfair labor practices charges against the department. FLRA investigators have found that at least five of those charges have merit, but complaints remain on hold because of the general counsel vacancy.
“Basically, the charges continue to accumulate,” AFGE Deputy General Counsel Cathie McQuiston said. “It’s kind of like ‘Groundhog Day’ in that we keep requesting that they renegotiate the contract and they keep refusing.”
The FLRA declined to say how many of the 6,500 unfair labor practice charges filed since Clark left were found to have merit. The total number of charges is down from nearly 4,300 per year filed during the Obama administration, likely because unions are taking some of their cases to arbitration or trying to resolve them otherwise.
The agency typically issues complaints—essentially filing a lawsuit against a government employer, which goes before an administrative law judge and can be appealed to a three-member FLRA panel—in about 200 cases a year. It issued at least 43 complaints in the 11 months that Sutton served as acting general counsel, according to agency data.
Another 3,300 cases are typically withdrawn or settled annually.
FLRA attorneys said that government officials have little incentive to settle cases since the agency can’t issue complaints. They spoke on condition of anonymity because they weren’t authorized to discuss the situation.
“We’re accepting lesser settlements and encouraging parties to accept those settlements instead of waiting for years,” an FLRA lawyer said.
Unions and workers whose cases aren’t settled also have the option of going through private arbitration. But the FLRA’s three-member panel has been overturning arbitrator rulings for unions at an unprecedented clip, according to a lawsuit the National Education Association filed last month against the agency.
Even if an arbitrator sides with a union or worker and the decision isn’t overturned, there’s only one person who can actually enforce it: the FLRA general counsel.
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