The FLRA has stressed that due to the vacancy in its general counsel’s position, it has not issued any findings of unfair labor practices for the last two years, contrary to what it said has been reported or implied by some media outlets.
The GC position has been vacant since November 2017. While a nominee cleared the Senate committee level in July, the vote fell along party lines and the nomination has not advanced to a full Senate vote.
Unfair labor practice complaints can be filed by either unions or by management against the other, although in practice the large majority are filed by unions; they have filed numerous complaints in that time alleging that agencies have not bargained in good faith or have committed other violations of labor law during the Trump administration.
The FLRA said that while it lacks a general counsel, “regional directors and other employees within the office of the general counsel continue the office of the general counsel’s regular practice of conducting investigations of unfair labor practice charges to make a recommendation as to whether an unfair labor practice occurred (a determination on the merits of the charge). While regional directors make internal, non-binding recommendations on issuing complaints to the office of the general counsel, it is for the general counsel alone to determine whether a complaint should issue based on those recommendations.”
It said that even when a general counsel has issued a complaint, “it remains for an administrative law judge to determine, after the regional office and the parties present their evidence at a trial, whether an unfair labor practice has actually occurred. The administrative law judge’s decision may then be appealed to the FLRA’s three-member adjudicative body and then to the appropriate federal court of appeals. Communications from a regional office, including a regional director, do not constitute a determination that an unfair labor practice has occurred.”