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Is it time for new labor law reforms?

On Behalf of | Sep 12, 2022 | Firm News

The past year has been good for unions. Unions recently scored some impressive wins, as employees formed new unions at Starbucks, Amazon and Trader Joe’s. And more of the nation has started thinking positively about unions.

As noted in The Conversation, unions have a better reputation now than at any point since 1965. Gallup polls show that 71% of the nation approves of them. But while more and more public businesses are unionizing, things aren’t always so easy for federal employees.

Who can unionize?

The difficulties with federal unions have been highlighted recently by the ongoing disputes between the National Association of Immigration Judges and the Federal Labor Relations Authority (FLRA). As the Government Executive notes, the disputes originated in November 2020.

Just two days before the 2020 election, the FLRA overturned a decision made by its regional director. Instead of allowing the immigration judges to unionize, the FLRA determined that the judges were “management officials.” Accordingly, it decertified the judges’ union.

The judges have since pushed back, appealing the dispute. They claimed the decision was rushed and ignored the previous standards for challenging decisions. They also pointed to arguments from the dissenting judge, who claimed his colleagues had made their decision before reviewing the law. Instead, they worked backward from their decision.

All of this goes to show that the FLRA has, for years, maintained a contentious relationship with federal unions. And the problem is, as the Federal Times reported last year, the FLRA determines which groups of federal employees can form collective bargaining units, aka unions.

Effectively, that means determining whether these people belong to excluded groups, such as:

  • Confidential employees
  • People involved in national security
  • People involved in personnel decisions
  • Management and supervisory positions

All told, the Office of Personnel Management says there are more than 100 unions representing federal employees. But the laws for these unions differ from those for private sector employees. For example, federal employees cannot go on strike like public sector workers. Instead, the law demands that agencies need to bargain in good faith with unions.

Sometimes, “good faith” demands better preparation

Federal unions offer many of the same benefits as private unions. They help workers bargain for fair job responsibilities and benefits. They can help defend employees from unfair discipline. They don’t negotiate pay as directly as private sector unions, but they can lobby for legislation that helps federal workers.

Of course, if there’s a dispute about whether an agency is bargaining “in good faith,” the question goes to the FLRA. As you can expect, anytime the FLRA is taking a more hostile approach toward unions, union members may need to keep one eye toward future appeals to the federal circuit. And unions have struggled in recent years as the nation’s courts and legislators have repeatedly weakened them. Now, as public support for unions has bounced back, some experts are saying it may be time for new labor law reforms.


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