Biden elevates DuBester to chair the FLRA

The quasi-judicial Federal Labor Relations Authority was involved in some of the most contentious wrangling between the Trump administration and federal employee unions.

Biden will also need to nominate a general counsel for the panel, Hogan said. The position is currently empty.
legislation
 

President Joe Biden has nominated Ernest DuBester to be the chairman of the Federal Labor Relations Authority, the agency that governs labor-management relations.

"It is a great privilege and an honor to be chosen by President Biden to serve as chairman of the FLRA," DuBester said in a statement.

The chairmanship is effective immediately without Senate confirmation, said Aloysius Hogan, the director of the Office of Legislative Affairs and Program Planning at the FLRA.

Under the Trump administration, DuBester has been the only member of the three-member panel appointed by a Democrat, as unions have jockeyed with the panel over its decisions and the legality of the makeup of FLRA's Federal Services Impasses Panel.

DuBester was originally appointed and later renominated by President Barack Obama, and then again by President Donald Trump. He previously served as chairman for some months during the Obama and Trump administrations.

In recent years, DuBester has dissented in cases dealing with issues like the disqualification of immigration judges from union representation, a rule change making it easier for feds to opt out of union dues and a ruling allowing feds to stop paying union dues at any time.

The American Federation of Government Employees has praised Biden's choice.

"President Biden could not have chosen a more qualified person to lead the agency charged with establishing and enforcing labor management law throughout the federal government," said AFGE national president Everett Kelley. "It is clear that he is right person to restore integrity to the FLRA."

AFGE and other unions are battling the FLRA in court over the constitutionality of the Federal Services Impasses Panel, a group of presidential appointees which has the power to resolve impasses in agency-union negotiations.

Several employee organizations, including the National Veterans Affairs Council (NVAC) and the Association of Administrative Law Judges (AALJ), have challenged the legality of the panel's makeup by arguing that appointments of current FSIP members are unconstitutional because they weren't subject to Senate approval.

The VA union and the agency have been locked in negotiations over the contract. According to the latest joint status report for the NVAC lawsuit, filed earlier this month, the union asked the FLRA for a stay in November regarding the last FSIP decision, which addressed contract articles the groups had reached an impasse on. That FSIP decision isn't yet being implemented.

In the FSIP case specifically, the union is arguing that the case challenging the constitutionality of the board is not moot, although the VA is arguing that the union doesn't have the standing for the claim.

Last November, a federal judge declared a similar case filed by the American Federation of Government Employees Council 222, which represents workers at the Department of Housing and Urban Development, became moot after the union complied with an agency order that it was challenging.

In the AALJ case, last May, the FLRA stayed FSIP's underlying decision that resulted in the case until the court makes a decision.

During the first session of the new Congress, Biden will need to re-nominate DuBester to a new term and nominate someone to replace fellow FLRA member James Abbott, whose term expired in July of 2020. The third member of the panel is filled by Colleen Kiko, a Trump-nominee who previously served as the chair and whose term expires in 2022.

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