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Nominations to Agencies Important to Federal Employees Set to Begin in the Senate

The Biden administration has been busy the last couple of months making many nominations for key positions in important agencies tasked with overseeing labor-management relations for federal employees and adjudicating adverse actions. Now, the focus shifts to the Senate, which will consider the nominees. Among them is a familiar name to NATCA, Susan Tsui Grundmann. The former chairwoman of the Merit Systems Protection Board (MSPB) and former NATCA general counsel was nominated to fill the second seat on the Federal Labor Relations Authority (FLRA) controlled by the president’s Party.

The FLRA administers the labor-management relations program for 2.1 million non-Postal federal employees worldwide, approximately 1.2 million of whom are represented in 2,200 bargaining units. It is charged with providing 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, 5 U.S.C. §§ 7101-7135.

If confirmed, Grundmann would join Chairman Ernest DuBester, who has already been nominated to a new term. DuBester is also a familiar name to NATCA. In 2009, DuBester was a mediator and labor law professor when President Obama nominated him to serve on the FLRA. DuBester had previously served as Chair of the National Mediation Board under President Clinton, resolving many airline collective bargaining disputes.

“The FAA-NATCA relationship is both storied and complex,” DuBester said several years ago. “It went from one of the worst labor management relationships in the federal government to hopefully what they’re comfortable saying is a model relationship.”

President Biden also announced that he will nominate Kurt Rumsfeld to serve as the FLRA’s general counsel, a position that sat vacant until Biden named an acting general counsel earlier this year. Without a general counsel, there is no one to prosecute unfair labor practices. As a result, the Federal Service Labor-Management Relations Statute could not be enforced.

The MSPB hears appeals of adverse actions taken against federal employees. It is supposed to have three members, but currently has none as it awaits Senate confirmation of President Biden’s three nominees. There has not been a  quorum, meaning the agency could not issue final decisions in adverse actions and Hatch Act cases. There is a backlog of more than 3,400 cases pending before the Board.

Additionally, President Biden last month named a completely new slate of members to the Federal Service Impasses Panel (FSIP). The FSIP resolves impasses between federal agencies and unions representing federal employees arising from negotiations arising under the Federal Service Labor-Management Relations Statute and the Federal Employees Flexible and Compressed Work Schedules Act. Although NATCA and FAA have a unique mediation to finality process culminating with binding arbitration for term contract impasses, we do use the FSIP for mid-term negotiations that result in impasse.

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