Ernest DuBester testifies during a 2017 Senate Homeland Security and Governmental Affairs Committee hearing on his nomination to be an FLRA member.

Ernest DuBester testifies during a 2017 Senate Homeland Security and Governmental Affairs Committee hearing on his nomination to be an FLRA member. Tom Williams / CQ Roll Call via Getty

New FLRA Chair Vows to Restore Pre-Trump Labor Precedent

One day after being named chairman of the federal labor agency, Ernest DuBester voluntarily recognized the FLRA’s union, undoing his predecessor’s controversial decision.

Ernest DuBester, the man tapped last month by President Biden to become chairman of the Federal Labor Relations Authority, is, by his own admission, somewhat obsessed with “context.”

During an hour-long interview with Government Executive, DuBester, who has been a member of the FLRA for nearly 12 years, frequently brandished a pocket-sized copy of the law founding the agency that governs labor-management relations in the federal government, in the same way some lawmakers carry around a tiny copy of the U.S. Constitution.

“I always carry it with me, and sometimes that causes problems with my wife,” he joked, just before giving an abbreviated legislative history of nearly every major provision of the law.

That context, DuBester argued, is necessary to understand that the law setting up how unions should operate at agencies was not just an administrative statute, but a set of specific policy choices designed to strike a delicate power balance, given the fact that federal sector labor groups have significantly less power than their private sector counterparts due to their inability to strike or bargain over wages.

And, the context is necessary to see why efforts to crack down on individual elements of those policy choices, particularly official time, arbitration and grievance procedures are, in DuBester's view, misguided.

“With those unique attributes in mind, I’ve dissented from an extraordinary number of cases in the last three to four years,” he said. “To me, they’ve all been in areas that, to me, don’t appreciate the fundamental policy underpinnings of this law and are just going further in the direction of eroding fundamental rights in the area of collective bargaining and the scope of bargaining that agencies have to engage in when they’re contemplating making changes to their operations.”

In most instances where the Trump-era FLRA overturned longstanding precedent, the agency must wait until it is presented with a new case touching on those issues. And even in instances where the FLRA issued general statements of policy, which until recently was a rare occurrence, DuBester said he must wait for agencies to request that the labor authority reconsider those pronouncements.

Under his tenure, DuBester said he would like to get away from the practice of issuing general policy statements, absent an actual underlying dispute between an agency and its union.

“There’s an analogous process at the [National Labor Relations Board] with regard to its rulemaking, and what the NLRB has said is that this creates more stability for the parties because you don’t have the potential of these swings back and forth,” DuBester said. “I understand that as a simplistic comment, but here’s the problem: In any instance and in any case that comes before us, so much of the time, it’s not only just about principles of law. The primary driving force may be the context and what the specific facts and circumstances are . . . The problem I had with these policy guidances is that you have such a complexity of circumstances here, that a sweeping new pronouncement on a rule doesn’t fit the realities of the workplace.”

Additionally, although DuBester is now the chairman of the FLRA, he technically remains in the minority among the board that adjudicates cases. Biden has yet to nominate a replacement for member James Abbott, whose term is expired and is serving in a holdover status, and the president must also nominate a general counsel, who would be responsible for issuing charges in unfair labor practice complaints.

DuBester said that there is currently a backlog of around 450 pending unfair labor practice complaints, where regional directors have determined unions’ allegations have merit. Once a general counsel is in place at the agency, that official can vet those findings and send those cases to administrative law judges for review.

Another priority for DuBester will be the restoration of the FLRA’s Collaborative Alternative Dispute Resolution Office, which he said will help unions and agencies to work more collaboratively through problems and reduce the need for litigation. The office also will work with parties in unfair labor practice cases to reach settlements, further reducing the costs parties incur and hopefully reducing the number of cases that need to come before ALJs and the FLRA board.

But in the meantime, DuBester said he hopes to focus on an issue upon which he can have a more immediate impact: the FLRA workforce. Between 2016 and 2019, the agency’s employee engagement score in the annual Federal Employee Viewpoint Survey has fallen from 84 to 64 out of 100. The Office of Personnel Management has yet to release the results of the 2020 survey, which was delayed twice due to the COVID-19 pandemic.

“If you want to improve performance at your agency, you have to focus on employee morale, and I believe, regrettably, that engagement and morale have been down the past couple years,” he said. “That’s unfortunate, so trying to restore that is really important . . . In my experience, the question around morale usually breaks down to a very fundamental and simple question: Do the employees feel like leadership places a high value on the importance of the agency’s mission, and is the work they’re performing important?”

DuBester places part of the blame for the drop in employee engagement with the controversial 2018 decision by then-FLRA Chairwoman Colleen Duffy Kiko to decertify the agency’s own union. That decision argued that because the FLRA is exempt from the provisions of the law governing federal sector labor unions, it would be a conflict of interest for FLRA employees to be unionized, overturning a 40-year-old Justice Department opinion allowing employees to organize.

One of DuBester’s first actions as chairman was to voluntarily recognize the FLRA’s union again, although he said his colleagues on the board are still “contesting” it.

“There’s a section of the statute that’s very important to me in giving me guidance, and it is the very first reference to the statute on the powers and duties, and what it says, before any other specific responsibilities in terms of the kinds of cases and the like, is to provide leadership in policies and guidance related to the labor-management programs of other agencies,” he said. “When you have that responsibility, and the central nature of your mission is labor-management relations, it’s important to lead by example. For us to have that responsibility and not have a program even though we are authorized to do so, to not recognize the union is really an unfortunate action.”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.