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Labor Authority Nominees Vow to Tackle Case Backlog That Flourished Under Trump

Unfair labor practice complaints stagnated for the last four years because the agency’s general counsel position sat vacant for the entirety of the previous administration.

President Biden’s nominees to serve at the Federal Labor Relations Authority said Wednesday that they are committed to addressing a backlog of hundreds of pending cases before the agency through a combination of “triage” and increased staffing.

In August, Biden renominated current FLRA Chairman Ernest DuBester to serve another term atop the agency that oversees federal sector labor-management relations, and nominated Susan Tsui Grundmann to be the authority’s second Democratic member. He also nominated Kurt Rumsfeld to serve as the agency’s general counsel.

During a confirmation hearing before the Senate Homeland Security and Governmental Affairs Committee, senators repeatedly asked the nominees about how they plan to tackle a backlog of 275 pending cases. Unfair labor practice cases require the FLRA general counsel to issue a formal complaint in order to proceed, but former President Trump failed to shepherd a nominee through the Senate, and never appointed an acting official, causing the backlog.

Rumsfeld, who previously served as the agency’s assistant general counsel, said reducing the backlog will be his “first priority” if confirmed.

“I plan on meeting with [Office of General Counsel] leadership to review the procedures that have been utilized thus far to address the backlog and the status of the backlog itself,” he said. “They’ve already made some inroads in addressing the backlog, and I think we can learn from that experience thus far with regard to how the process and procedures have been working. I also believe strongly in looking at how past backlogs were handled by prior general counsels.”

DuBester noted that a similar, worse backlog arose in the waning years of the Bush administration, just before he first joined the agency as an authority member in 2009.

“In 2009 we had a much larger backlog to an even more serious degree, and we put into effect a critical action plan with time targets,” he said. “What it did was try to harmonize targeting cases that were really old, while also not ignoring new filings. That’s always the issue: If you focus only on old cases, then new filings come in [and eventually become part of the backlog] . . . So I’ll take an assessment and try to come up with what I believe is a reasonable critical action plan that avoids us developing a bigger backlog.”

Sen. Kyrsten Sinema, D-Ariz., asked Grundmann how her work at the Merit Systems Protection Board and reorganizing the Office of Congressional Workplace Rights following legislation reforming the office will translate to the FLRA.

“We proved that when given a timeframe of six months to overhaul the agency, you can do it with proper resources and personnel,” Grundmann said. “We had an amazing team—at the time it was called the Office of Compliance—and we built it pretty much from the ground up. What I’ve learned is to build teams and coalitions and to set timelines and timeframes and hold yourself to them. We can do that wherever we go.”

Sen. Josh Hawley, R-Mo., suggested that the FLRA was being “politicized” because Biden nominated two Democrats to the authority’s panel and a Democrat to the position of general counsel, despite the fact that those nominations are in line with how the law prescribes the president make the appointments.

“The FLRA is meant to be an independent nonpartisan agency, but of the three members, only one is a Republican, and you all have a long history of donating exclusively to Democratic officials,” Hawley said. “In a situation where two thirds of the members are Democrats and three of the four most senior positions will be held by Democratic appointees, labor relations can be a politicized topic . . . Can you speak to the importance of FLRA being a nonpartisan and independent entity, and how do you overcome the perception that the agency has been captured by one political party?”

DuBester noted that the president’s nominations follow precedent set by the law and 40 years of presidential appointments to the agency, but said that he has always worked to maintain a “collaborative” relationship with Republican appointees during his tenure in government. He said that when he brought back the agency’s alternative dispute resolution program, which is designed to promote agencies and unions settling their disputes collaboratively before litigation reaches the FLRA board, he gave his Republican colleagues the ability to approve which cases are sent to that program.

“Just for clarity, and I know you know this, but under the statute, the way it works of course is that with any president, Republican or Democrat, they have to have at least one member not of their party, and that’s the way it works,” DuBester said. “[I’ve] had the privilege to serve at two different independent agencies, and I’ve had several Republican colleagues, and I’ve always had a collegial and collaborative relationship with them.”