Union Elections and Bargaining Units: The FLRA Puts Regional Directors Back in Charge After a Court Vacates Its Rule

Bottom line

Since 1983, career Regional Directors have made the first call on federal union elections and bargaining units, with the three-member Authority hearing appeals ^[3]. In April the FLRA took those first calls for itself. A week ago today, it published two rules putting the old system back in the Code of Federal Regulations, because a federal court had vacated the change ^{[1, 2]}. If you have a representation case at the FLRA, the familiar procedure governs it, and so does the 60-day appeal.

What happened

The March rules. On March 24 the FLRA published an interim final rule rewriting its representation regulations, along with an amendment to the internal memorandum that delegates work to Regional Directors ^{[3, 4]}. Both took effect April 23 ^{[3, 4]}. The stated aim was to “provide parties in most cases with decisions from the Authority on all consequential issues in representation proceedings” ^[3]. The Authority would decide whether a unit was appropriate, approve election agreements, certify election results and rule on objections, while regional offices kept doing most investigations, hearings and ballot counts ^[3]. Because the Members would decide these matters directly, the rule said, “an appeals process will no longer be necessary” ^[3]. The old two-step structure survived only for cases arising when the Authority lacks a quorum ^[3]. The FLRA cited Executive Order 14210 and described the change as streamlining ^[3].

In a press release quoted by Federal News Network, the FLRA said it was adopting the changes “to streamline its representation processes, reduce potential delays, and optimize workforce resources” ^[5]. It treated the rule as not substantive and skipped advance notice and comment ^[3].

Member Anne Wagner dissented. She supported exploring revisions “largely along the lines” of the rule, but objected to the method ^[3]. “Using interim final rulemaking effectively tells our stakeholders that, although we welcome their comments, we will not necessarily consider them,” she wrote, calling the revisions “the biggest changes to the FLRA’s representation case processing in nearly 43 years” ^[3].

The lawsuit. Eight unions representing more than 1 million federal employees sued under the Administrative Procedure Act, Federal News Network reported ^[6]. Their complaint argued the changes were substantive and required notice and comment, and that removing the second layer of review “will increase errors in the representation process” ^[6]. It also tied the issue to reorganizations: “Agency reorganizations often lead to new representation petitions that must be processed, including petitions to clarify bargaining units or consolidate bargaining units,” the lawsuit stated ^[6].

The ruling. According to the FLRA’s account, the U.S. District Court for the District of Massachusetts held on June 29 that the interim final rule, the delegation amendment and their April 23 effective date were arbitrary and capricious ^{[1, 2]}. A final judgment on July 8 vacated them, except for certain minor or technical changes ^{[1, 2]}. The case is AFGE, AFL-CIO v. FLRA ^[1].

The October 15 rules. FR Doc. 2026-21078 reinstates the wording of parts 2421, 2422, 2426 and 2429 as they stood before April 23, leaving in place the technical edits the court did not vacate ^[1]. FR Doc. 2026-21077 restores section I.C. of the delegation memorandum, which hands representation cases to Regional Directors ^[2]. The FLRA was candid about the timing: the old regulations “were already in effect as a matter of law due to the District Court’s decision, but this publication restores their appearance in the Code of Federal Regulations” ^[1]. Both rules took effect on publication without comment, which the FLRA described as “the ministerial task” of carrying out a judgment ^[1].

Readers should note one sentence in each document. “The FLRA has sought reconsideration of the District Court’s decision” ^{[1, 2]}.

What it means for you

Employees in a unit facing an election or a decertification petition. The Regional Director again runs the case from petition to certification: investigating, holding any hearing, directing the election and certifying the result ^{[1, 2]}. The restored rules also bring back the familiar timing bars, such as the rule that, where no union is certified, a petition filed within 12 months of a valid election in the same unit is not timely ^[1].

Unions and agencies that lose a ruling. The appeal is back, and it is strict. A party must file an application for review with the Authority within 60 days of the Regional Director’s Decision and Order; the regulation says that limit “may not be extended or waived” ^[1]. The Authority grants review only on listed grounds: no precedent, a reason to reconsider established law, or a genuine question whether the Regional Director failed to apply established law, made a prejudicial procedural error or a clear and prejudicial factual error ^[1]. An application may not raise issues or facts that were not timely presented below ^[1]. If no one applies, or the Authority does not act within 60 days of a timely application, the Regional Director’s decision becomes the Authority’s action ^[1]. Filing does not stay the Regional Director’s order unless the Authority says so ^[1].

Units being reshaped by a reorganization. Unit clarification and consolidation petitions follow agency restructurings, as the unions’ complaint pointed out ^[6]. Those cases return to the Regional Directors ^{[1, 2]}. Bob Tobias, a former NTEU president, made the case for speed to Government Executive in March: “The whole idea of filing for an election is to get it done as soon as possible, without delay” ^[7]. The restored procedure is the one the parties have known since 1983 ^[3].

Agency labor relations staff. Regional Directors can again tell an agency to post or distribute a notice of a petition to affected employees ^[1]. Your counterparts in the regional office are, once more, the decision-makers rather than staff working toward an Authority ruling ^{[1, 3]}.

Contractors. The FLRA describes these rules as applying only to federal agencies, federal employees and the labor organizations that represent them ^[1]. Contractor employees are not on that list.

• When the court will rule on the FLRA’s reconsideration request. The FLRA has said only that it will publish a superseding notice if the decision is vacated ^{[1, 2]}.
• What happens to petitions processed, elections certified or units decided by the Authority between April 23 and the court’s ruling. Neither October notice addresses them ^{[1, 2]}.
• How the restored structure fits with the FLRA’s separate review of unfair labor practice adjudication, which the March rule said could be the subject of later rulemaking ^[3].

This column’s August 10 memo covered another procedural change in federal labor disputes, the FMCS arbitration screening rule.

Questions you’re probably asking

Who decides federal union elections and bargaining unit disputes now?

FLRA Regional Directors, as before April. The October 15 rules put back the delegation that lets them determine appropriate units, direct and supervise elections and certify results ^{[1, 2, 3]}.

Can I appeal a Regional Director’s representation decision to the FLRA?

Yes. The restored rule allows an application for review to the Authority within 60 days of the Regional Director’s Decision and Order, and that deadline cannot be extended or waived ^[1]. The Authority grants review only on listed grounds, such as an absence of precedent or a clear and prejudicial factual error ^[1].

Is the FLRA’s April 2026 representation rule still in effect?

No. The FLRA says the court vacated it, apart from some minor or technical changes, and that the older regulations were already in effect as a matter of law before the October 15 publication ^[1].

Could the FLRA’s representation rule come back?

Possibly. The FLRA has asked the court to reconsider and says it will publish a superseding notice if the decision is vacated ^{[1, 2]}.

Does this change affect pending unit clarification petitions after a reorganization?

Those petitions are representation cases, so they now run under the restored rules ^{[1, 6]}. The FLRA has not said how cases handled under the interim rule are treated ^[1].

What I’m watching

• No date set: the District of Massachusetts ruling on the FLRA’s motion for reconsideration in AFGE v. FLRA, and any superseding Federal Register notice that follows it ^{[1, 2]}.
• No date set: whether the FLRA proposes the representation changes again through notice and comment, as Member Wagner urged in March ^[3].