Labor Authority Denies Union Request to Block Outside Groups from Seeking Policy Statements

The Federal Labor Relations Authority by a 2-0 margin on Thursday denied a request by a union to change its regulations to bar groups that do not represent federal workers from requesting general policy statements from the agency overseeing federal labor relations.

Last May, the National Treasury Employees Union petitioned the FLRA to change its regulations so that only federal agencies, unions and other employee groups can request policy statements from the authority. The initiative came after the National Right to Work Legal Defense Foundation made three separate requests for the already controversial practice during the Trump administration, although the FLRA only agreed with the group on one of those occasions.

In that instance, the conservative anti-labor advocacy group requested the FLRA outlaw the use of official time for any lobbying activities due to the Anti-Lobbying Act. The authority ruled partially in favor of the organization, issuing a policy statement barring union members from engaging in “grassroots” lobbying, the practice by which a labor representative encourages members to contact their lawmakers to support or oppose legislation, although it preserved the right for union officials to engage in direct lobbying, such as testifying before Congress.

NTEU’s 2022 petition urged the FLRA to limit who may request policy statements to federal agencies, unions and other employee groups that are already within the FLRA’s jurisdiction. But in a decision penned by Republican FLRA Member Colleen Duffy Kiko, the FLRA found NTEU’s proposal conflicted with the authority’s regulatory history, noting that the authority’s predecessor—the Federal Labor Relations Council, established via executive order by President Nixon—allowed non-labor organizations to be heard before it.

“The entity that preceded the authority—the Federal Labor Relations Council—promulgated regulations allowing ‘any lawful association’ to ‘ask the council for an interpretation of [the executive order] or a statement on a major policy issue,” Kiko wrote. “The referenced section of the order allowed agencies to consult with ‘veterans organizations’ or ‘religious, social, fraternal or other lawful associations not qualified as a labor organization.’ ”

Additionally, Kiko wrote that the idea that only those bound by the FLRA’s decisions may request statements or guidance on authority policy is simply too stringent of a barrier.

“The authority’s interpretation and application of the statute affects individuals and groups outside of the authority’s jurisdiction, including the general public,” the decision stated. “We believe the authority improves its ability to establish policies and guidance under the statute when it takes diverse interests and viewpoints into account.”

In a concurring opinion, Chairwoman Susan Tsui Grundmann said that while she would have preferred to solicit comments from stakeholders prior to issuing a decision on the petition, she agreed with the decision to deny NTEU’s request.

“A crucial part of both collective bargaining and providing leadership is listening,” Grundmann wrote. “In that spirit—and in the interest of a transparent, engaging process with stakeholders in our community—I was inclined to publish a Federal Register notice to solicit comments on the petitioner’s proposed regulatory revision in this case. At the same time, those same concerns cut against actually adopting the proposed amendment, which would restrict who can ask us to issue general statements of policy or guidance.”

In a statement Friday, NTEU National President Tony Reardon said he was disappointed in the FLRA’s decision.

“We disagree with the FLRA’s decision to allow outside interest groups that do not represent federal workers to seek policy changes affecting federal employees and their collective bargaining rights,” he said. “The FLRA should only issue policy statements when they are requested by entities that are subject to its statutory authority, like agencies, unions and other lawful associations of federal employees. NTEU will strongly oppose any future requests for policy statements from outside interest groups that seek to harm federal employees or their bargaining rights.”