Federal Workers Need a Functioning Federal Labor Board

Federal workers are in unfamiliar territory with the wind at our backs. The tight labor market; popular sympathies after three bitter government shutdowns over the past decade; the Biden administration’s reversal of Trump’s abusive anti-union policies — all this sets the stage for possible rank-and-file-led advances in working conditions and new organizing in the federal sector.

But it’s not clear how long this window of opportunity will remain open. Now is the time to get organized — not only within locals to win better contracts and enforce our rights, but also nationally and politically, among all the different unions and agencies.

For starters, there’s one urgent demand that we should all support: the confirmation of incumbent Ernest DuBester to serve another term at the Federal Labor Relations Authority.

The FLRA governs federal labor relations, akin to what the National Labor Relations Board does in the private sector. In particular, the three-member board hears arbitration appeals and negotiability disputes.

Without DuBester it’s a split board — the two remaining members were appointed one by Trump, the other by Biden — and the confidence of federal unions in negotiating and enforcing agreements will be diminished.

The demand to fill a labor board seat might not sound like a recipe for reviving a fighting movement. But paired with a push by federal workers to improve working conditions, a victorious grassroots push to confirm DuBester can lead on to more victories.

UNIONIZED BUT FRAGMENTED

The U.S. government is the country’s largest employer, with 2.1 million employees, not counting postal workers. Though this workforce is relatively union-dense (1.2 million are represented), it is also an open shop environment where fewer than 20 percent pay dues to a union.

Most of the 400,000 federal union members belong to the American Federation of Government Employees (AFGE); another quarter are members of the National Treasury Employees Union (NTEU). The remainder are split among two dozen unions.

By profession the workforce is mainly white collar, though there are also significant numbers of blue collar workers, such as wildland firefighters, custodial workers, and maintenance mechanics. Geographically, aside from some concentrated pockets—chiefly in the metropolitan Washington, D.C., region where 15 percent of us work—the full federal workforce is distributed thinly throughout the country.

The result of such an atomized workforce is that federal workers exert far too little political and bargaining power for our numbers.

CHALLENGES AND OPPORTUNITIES

Legally, the deck is stacked against federal unions. Unlike in the private sector, owing to major concessions enshrined in the Civil Service Reform Act of 1978, pay and major benefits like health care are off the table in our collective bargaining.

Instead, our uniquely limited scope of bargaining covers working conditions and how (and how much) any union member may conduct representational activities while on the clock.

The open shop plus a strict ban on work stoppages limits union leverage. Accounting for this, the law elevates the role of government “neutrals” to adjudicate disputes. And as we’ve seen, “neutrals” are often anything but neutral.

Over the five years that the FLRA was run by a Trump-appointed majority, a hard anti-union agenda was pushed through every forum — from disbanding entire unions (such as those representing the FLRA’s own staff and immigration judges at the Department of Justice) to further limiting the scope of bargaining through an expansive interpretation of management rights.

BROAD RANKS OF UNION REPS

Despite these limitations, the FLRA does lend federal workers the opportunity to directly negotiate and enforce details on a vast array of working conditions — such as telework policies, disciplinary guidelines, health and safety measures, and work performance assessment procedures.

This potential for direct self-representation is owed to the law’s requirement that the government release workers from their job duties to conduct representational union functions while on official time.

Done strategically, spreading official time among the broadest possible ranks of the workplace allows for more workers to do the work of their unions — while avoiding the need to take experienced leaders entirely away from regular work duties.

This way, veteran leaders can maintain their connection to the workplace and a larger base of new union leaders can be developed. If we emphasize self-representation and prioritize negotiating working conditions and the details of the work process, we can develop a new strategy to rebuild federal unionism from the bottom up.

But all that potential can be lost if those few favorable features of the law aren’t upheld by the FLRA.

A RALLYING CRY

If DuBester remains unconfirmed at the end of this calendar year, the FLRA will be split between its remaining two members, Trump nominee Colleen Duffy Kiko and Biden nominee Susan Tsui Grundmann, and subsequently unable to issue decisions on controversial matters.

In more than four decades of modern federal labor relations, FLRA confirmations have typically been handled quietly by Senate leaders, perhaps with some nudging by the big unions. Members and locals were not consulted, let alone required, for the confirmation process.

But these days, nothing is typical. For Biden’s first nominee to the FLRA, Grundmann, a months-long drumbeat from national labor leaders was not enough to win confirmation in the Senate.

Only in May, after a few dozen union locals representing some 20,000 feds from across the country signed onto an unforgiving letter directed at Senate Majority Leader Chuck Schumer, did the political will materialize to see Grundmann confirmed.

The letter was part of a grassroots effort initiated early this year by an informal network of federal local leaders who were frustrated by the persistent presence of the Trump majority more than a year into the Biden administration.

A NEW OPEN LETTER

In the case of DuBester, Republicans are refusing to let his nomination out of committee, threatening to deny Biden the majority membership that the President is supposed to enjoy at the FLRA. The Senate has unanimously confirmed DuBester to all three previous terms he has served, beginning with his first nomination in 2009.

The only way around the GOP’s obstruction would be through a “discharge petition” to bring the nomination directly to the Senate floor. Such a parliamentary maneuver would require support from all 50 Senate Democrats.

Well over a year since Biden nominated him, it falls to the rank and file once again to push to get DuBester confirmed. A new open letter from local leaders and members is circulating, this time addressed to Biden, extending an offer to support the President’s nominee.

If federal union activists rally behind Ernest DuBester in the coming months, we might just manage to defeat Republican efforts to handicap federal unions. In the process, win or lose, we can cohere a national cohort of the next generation of government union leaders — and the years ahead could be full of experiments in creative, local and member-led federal unionism.

This blog originally appeared at Labor Notes on October 13, 2022. It is republished with permission.

About the Authors: Chris Dols, Mark Smith, and Morgan Stewart wrote this blog. Chris Dols is president of IFPTE Local 98 at the New York District of the Army Corps of Engineers. Mark Smith is a steward with NFFE Local 1 at the San Francisco Veterans Affairs Healthcare System. Morgan Stewart is president of AFGE Local 3380 at the Department of Housing and Urban Development in Richmond, Virginia.

Learn more about federal workers’ rights on Workplace Fairness’ page.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.