Labor & Employment Law Daily Wrap Up, FLRA NEWS—Authority announces changes that will re-centralize control over representation proceedings, (Mar 23, 2026)

By Brandi O. Brown, J.D.

Under the interim final rule, the FLRA notes, an appeals process will no longer be necessary except in instances in which there is no quorum.

The FLRA is issuing an interim final rule with request for comments, as well as a final rule making amendments related to the interim final rule, related to the processing and determination of representation matters. The main takeaway is that the Authority is bringing previously delegated responsibilities back in-house, except in circumstances in which the Authority no longer has a quorum, and eliminating the two-tiered structure of initial decision by Regional Directors and appeal.

Since 1983, as a result of a delegation of authority appearing in section I.C. of a memorandum published as Appendix B to 5 CFR Chapter XIV, Regional Directors have had the responsibility to determine whether a group of employees is an appropriate bargaining unit, to conduct investigations and to provide for hearings in representation matters, to determine whether a question of representation exists and to direct an election, and to supervise or conduct secret ballot elections and certify the results thereof. A process of review by the Authority of those actions has also been in place since that time.

Collaboration, not delegation. However, through these two publications in the upcoming Federal Register, the FLRA is eliminating that delegation, except in circumstances where the Authority lacks a quorum. The FLRA now envisions a process in which representation matters are resolved through the collaborative efforts of the regional offices and the Authority, rather than a two-part process kicked off by an initial decision by an RD and followed by a possible appeal to the Authority.

Possibly at multiple points. In the new process, according to the interim final rule, parties will continue filing all representation petitions with the regional offices, who will begin processing those petitions. However, now when the processing of a case requires the exercise of one of the Authority’s statutory responsibilities under 5 U.S.C. § 7105(a), the Authority will make any determinations under § 7105(a)(2) that are required for the subsequent disposition of the case. The interim final rule notes that some of these matters may require the involvement of the Authority at multiple points, whereas others may require a decision from the Authority only at the case’s conclusion.

Authority to make certain decisions. Under the new process, after consultation with the regional offices, the Authority will: determine whether a group of employees is an appropriate unit; authorize the regional offices or Authority staff to conduct all investigations and hearings; determine whether a question of representation exists and direct an election; and authorize the regional offices or Authority staff to supervise or conduct elections, after which it will certify the results.

Because the Authority will be performing these functions itself, rather than delegating them, an appeals process will no longer be necessary under § 7105(f), the notice explains, except in no-quorum situations, where such delegations can still occur.

Nevertheless, the Authority notes that it anticipates that the regional offices will continue to conduct most investigations and hearings in representation matters after receiving the Authority’s authorization, although Authority staff may also be assigned those duties as needed, consistent with § 7105(d). It also intends for the regional offices to continue conducting authorized elections in most cases, although the Authority will make decisions on election agreements and directions of elections. The regional offices will continue to tally ballots and make determinations on election observers, but the Authority will certify the results. The Authority will address determinative challenged ballots in elections, and will decide all election objections concerning either the election process itself, or conduct that may have otherwise improperly affected the results of the election.

Where no quorum exists. The Authority, however, will maintain the current “two-layered structure of initial decision and potential appeal” for representation matters arising when the Authority lacks a quorum. In those circumstances, the parties involved in the representation matters that arise will have the right to file an appeal of an RD’s action under 5 U.S.C. 7105(f), but that appeal can be addressed only when an Authority quorum is restored.

The FLRA also notes that it has collected all the special rules regarding matters that arise when the Authority lacks a quorum into sections within parts 2422 and 2426.

ULP changes ahead? As a final note, the FLRA states that it is also currently reexamining the manner in which it adjudicates unfair labor practices (ULPs), including who will hold hearings and draft recommended decisions in ULP cases, and that it anticipates that those topics could be the subject of separate rulemaking. Thus, some of the regulations in parts 2421 and 2429 that concern administrative law judges (ALJs) and ULPs are left unchanged at this time because they could be addressed in future rulemaking, if necessary.

The interim final rule and the final rule are both effective 30 days after the date of publication in the Federal Register, which is scheduled for March 24, 2026. Comments will be accepted if received within that 30-day period.

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