FMCS Revises Regulations to Allow “Threshold” Determinations on Federal Grievances

The Federal Mediation and Conciliation Service (FMCS) traditionally acted as a ministerial body, assigning mediators and arbitrators to resolve collective-bargaining disputes in both the private and public sectors. Earlier this year, FMCS shifted its approach, asking “threshold” questions about the arbitrability of grievances before appointing arbitrators. By the end of April, the agency issued a memo that it would no longer appoint arbitrators for grievances at agencies subject to President Trump’s 2025 executive orders that barred collective bargaining on national-security grounds.

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In an interim final rule published in the Federal Register, FMCS formally amended its regulations to permit “limited threshold determinations” on whether it may lawfully provide an arbitrator panel. The agency said the change is necessary because some federal agencies have objected to arbitrator appointments under the anti-union executive orders. The rule is effective immediately, and FMCS will accept public comments on the amendment until early September. FMCS explained that the prior language could be misread as obligating the agency to provide panels even when doing so would conflict with law, court orders, or its statutory authority. Under the new rule, FMCS may request information from the parties, decline a panel request, hold it in abeyance, or take another administratively appropriate action.

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The agency framed the change as a correction of “confusing and potentially misleading language” in its existing regulation.

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Four major federal-employee unions—the American Federation of Government Employees, International Federation of Professional and Technical Engineers, National Federation of Federal Employees, and National Treasury Employees Union—accused FMCS of violating the Administrative Procedure Act by bypassing its own regulations. Robert Tobias, a distinguished practitioner and former president of the National Treasury Employees Union, expressed confusion over the policy shift, noting that the agency’s stance appears contradictory to the clear language of the law.

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• “Unions—and my clients—have been winning those cases left and right,” — Summerlin, an independent attorney that represents unions in grievances and other matters

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