Politics and Confirmation Voting for FLRA Members
On July 10, 2024, the Senate confirmed Anne Marie Wagner to be a Federal Labor Relations Authority member for five years. The vote was 55-37 in the Senate Homeland Security and Governmental Affairs Committee. The vote was on party lines with Democrats overwhelmingly supporting the nomination and Republicans opposed.
Of the 55 favorable votes, eight were Republicans. No Democrats voted against the confirmation, but two Democrats did not vote. Bernie Sanders, considered an Independent, and Krysten Sinema, also considered an Independent, did not vote on the nomination.
Lack of Confirmations for Agency Nominees Delays Decisions
It has been some time since three confirmed Federal Labor Relations Authority (FLRA) members were confirmed and working at the agency. While the FLRA may be unknown to most federal employees (and the general public), its decisions impact the federal workforce.
It has been a while since three confirmed Federal Labor Relations Authority (FLRA) members were confirmed and working at the FLRA. While most federal employees may be unaware of the agency, its decisions impact the federal workforce. Federal employee unions probably miss the full complement of the agency the most. The FLRA is the agency they routinely use for filing unfair labor practice (ULP) charges against federal agencies.
The FLRA was established by the Civil Service Reform Act of 1978 (CSRA) to “provide leadership in establishing policies and guidance related to federal sector labor-management relations and with resolving disputes under, and ensuring compliance with, the Federal Service Labor-Management Relations Statute.”
While two FLRA members can still issue decisions, no decision is issued if it is a tie vote. With three members again in place, more decisions will be issued.
There is still not an FLRA General Counsel in place. This means that no decisions on unfair labor practice allegations can be issued. According to the FLRA’s press representative, Eric Prag, “184 complaint recommendations are currently pending a confirmed General Counsel. Appeals of dismissed unfair labor practice charges also await a confirmed General Counsel, however the numbers are not shared with the public.”
The last confirmed FLRA General Counsel left the agency in 2017.
The newest FLRA member was Assistant General Counsel for the American Federation of Government Employees for a number of years. As President Biden noted in a press release, “In her nearly 20 years with AFGE, she led precedent-setting litigation and handled cases arising under the full array of laws governing Federal employment.”
She was most recently the Associate Special Counsel with the Office of Special Counsel for nine years. Her confirmation was applauded by Special Counsel Hampton Dellinger.
Most federal employee unions have issued a statement welcoming Ms. Wagner’s appointment. They are likely anticipating success with their cases at the FLRA—especially on controversial issues with potential significant impact on those who stand to gain or lose from an FLRA decision—from appointees with a strong union background.
President Biden is a staunch supporter of unions in general. His nominees often have a strong union background, especially in positions of the most concern to unions, and he can count on their endorsements and financial support in an election.
As highlighted by former FLRA General Counsel Joe Swerderski:
My concern is when it so obviously exercises its discretion in favor of one half the equation in labor relations, how does it expect to be considered even handed? My concern is not the decisions of the FLRA. I certainly lost cases before the FLRA when I was General Counsel. My concern is that the decisions must be well thought out, well written and not show the least bit of prejudice. The Circuit Courts of Appeals overturned many of these decisions based on the FLRA not having legal support for the decision issued to the point in some cases the rationale for the decisions was considered arbitrary and capricious.
No longer does there seem to be concern that the FLRA comes up with the right answer, the Congress wants to preordain that it come up with an answer the Congress wants based on the appointee’s predilection towards management or unions. We have gone from the days when it was important that a neutral not only appear to be neutral but in fact act as a neutral, to a day where one side or the other just wants what it wants.
While Mr. Swerdzewski was referring to nominees under President Trump, the argument is valid whether the nominees are generally known to have been associated with either management or labor unions.
FLRA Members
With Anne Wagner’s confirmation, all three positions on the FLRA will be filled. The other two members are:
- Susan Tsui Grundmann is the FLRA Chairman and has been in that position since May 2022.
- Colleen Duffy Kiko is the other current FLRA Member. She was the FLRA Chairman from 2017 until January 2021. President Biden nominated her to remain at the FLRA in September 2023 for a new 5-year term.
The General Counsel’s position is still vacant. President Biden nominated Suzanne Elizabeth Summerlin to the position in January 2024. She has worked in several legal positions for unions and as a broadcast journalist.
The nomination was placed on the Senate Executive Calendar that same month but “Subject to nominee’s commitment to respond to requests to appear and testify before any duly constituted committee of the Senate.”
Those in the federal labor relations community may find the coming months interesting. We can anticipate decisions will appear, including some that have been pending for some time, such as a proposal to make it more difficult for federal employees to cancel a union dues withholding payment.
