An Effort to Make It Easier for Feds to Bust Their Own Union is Blocked by the FLRA

The Federal Labor Relations Authority last week rebuffed a conservative-backed effort to open federal employee unions that have recently consolidated multiple bargaining units within an agency to decertification petitions from individual employees.

In September 2021, employees at the National Park Service’s Blue Ridge Parkway facility successfully petitioned the FLRA to consolidate their bargaining unit, which until that point was represented by the National Association of Government Employees, with a bargaining unit represented by the American Federation of Government Employees, effectively electing to be under the AFGE umbrella.

But in December 2021, Erin Lamm, then a member of one of the bargaining units, filed a petition with the FLRA to decertify the newly consolidated union local, despite the longstanding rule blocking such petitions within 12 months of a union’s certification. Lamm was backed in her effort by the National Right to Work Legal Defense Foundation, a conservative anti-labor organization which argued that the FLRA’s prohibition on decertification petitions should only apply for 12 months following a union election, not in cases where a labor organization was certified due to a consolidation or other administrative procedures.

Last year, the FLRA announced that it had found no legal precedents to consult on this issue and solicited parties to submit legal briefs on the matter. Separately, AFGE filed an unfair labor practice complaint against the National Park Service late last year, arguing the agency broke federal rules requiring management to be neutral on questions of union representation because it did not prevent Lamm from continuing to pursue the case after she was promoted out of the bargaining unit.

Last week, FLRA members Susan Tsui Grundmann and Colleen Duffy Kiko ruled that although federal labor law does not prohibit individuals from filing decertification petitions against their union within 12 months of multiple bargaining units  being consolidated into one, FLRA regulations do.

“Exercising its regulatory powers, the Authority promulgated a certification bar that applies following ‘the certification of the exclusive representative of the employees in the appropriate unit,’” the FLRA wrote. “By not distinguishing between certifications arising from [elections or consolidations, the regulations’] plain wording supports a certification bar that encompasses all certifications under the statute. The petitioner disputes this interpretation on the basis that the [regulation] ‘does not indicate that it applies to unit consolidations’ or reflect an ‘intention to create new bars not mentioned in the statute.’ However, the regulatory history confirms its application to consolidation certifications.”

The FLRA wrote that although the agency’s regulations were revised in 1995 in a way that removed an explicit statement that bargaining unit consolidations are protected by the 12-month bar on decertification petitions, that was simply part of an effort to streamline the regulations’ language. And those revisions still specified that “there are no substantive changes” to how the certification bar applies to unit consolidations.

Cathie McQuiston, deputy general counsel for AFGE, said that although her union welcomed the FLRA’s decision last week, it merely marks the “middle of the saga,” not the end. The FLRA’s Atlanta regional director has thus far declined to issue a complaint in connection with the union’s unfair labor practice complaints, and the regional director has scheduled a union election for June to settle the dispute.

That election was originally scheduled for the winter, but the FLRA agreed to move it to June, since roughly half of the bargaining unit is comprised of seasonal employees who would not be employed or eligible to participate under the original timeline.

“We’re still objecting to the election being held for all of the reasons we’ve previously discussed,” McQuiston said. "Not only did Lamm, the person in this case, continue to advance the decertification petition despite leaving the bargaining unit, but also, once she figured out that it wouldn’t work out, she solicited another bargaining unit person to replace her. Here is a manager conspiring with a bargaining unit employee to take her place in the case, and that’s inappropriate . . . So we’ve argued that it’s just not appropriate, given the shenanigans of management inserting itself into the matter and recruiting substitutes—we just have a general objection to this election.”

McQuiston said that no matter the result of the upcoming election, someone is likely to file objections with the FLRA regional director, which can then be appealed to the full FLRA. But given that the FLRA board has been split between one Democrat and one Republican since former Chairman Ernest Dubester’s term expired in January, the union will have to think carefully about whether to pursue further litigation.

“We would consider that, because I do think there are important things here that should be addressed by the authority, but it depends on what the authority looks like in the particular window we have to make that decision,” she said. “And if we don’t file objections, the National Right to Work Foundation probably will.”