OPINION:
Practically from the day he was inaugurated, President Biden has staked his claim that he will go down in American history as “the most pro-union president leading the most pro-union administration” ever largely on his ability to deliver more money and more power to the top bosses of federal employee unions.
Just two days after he took office, Mr. Biden issued an executive order with a preamble vowing that, under his watch, the federal government would become a “model employer” that does everything in its power to facilitate the corralling of federal employees into unions.
At first blush, it would seem that certain provisions of the Civil Service Reform Act of 1978 would present a serious obstacle for this White House initiative, despite the law’s overarching bias in favor of federal union organizers.
A key case in point is Section 7111, which states that, upon receiving a petition alleging that 30% or more of employees in a unionized unit of the federal government don’t want the incumbent union as their monopoly-bargaining agent, the Federal Labor Relations Authority, or FLRA, “shall supervise or conduct an election” if, after investigating and hearing the evidence, it concludes that “a question of representation exists.”
In short, the FLRA is charged with protecting federal employees’ right to vote out, or “decertify,” a union they don’t want.
Unfortunately, in practice, the FLRA has long given short shrift to the rights of civil servants who prefer to be union-free.
For example, as FLRA member Colleen Duffy Kiko recently acknowledged, even when an otherwise valid petition to oust a federal union has been submitted and there is ample reason to believe a majority of the workers subject to its monopoly-bargaining power want out of the union, both statutory and bureaucratically created “time bars” routinely enable union bosses to prevent any election from happening.
Collectively, time bars prevent employees from filing decertification petitions, as Ms. Kiko explains, “within twelve months of an election, within twelve months of a certification, during agency-head review, more than 105 days after an effective agreement expires, or within sixty days of an effective agreement’s expiration.”
And those are only some of the current restrictions.
If Mr. Biden’s FLRA, which currently has two members and one vacancy, were even remotely interested in moving toward equal protection for employees’ statutory right “to form, join, or assist any labor organization” and their concomitant right to “refrain from any such activity,” it would be working to make it less difficult for employees to decertify a union they don’t want.
Instead, it is moving full speed ahead in the opposite direction.
The FLRA’s May 22 ruling in favor of American Federation of Government Employees, or AFGE, union bosses and against a group of independent-minded National Park Service workers in North Carolina highlights the current members’ willingness to use any excuse to keep civil servants trapped in unions against their will.
Despite the lack of any statutory provision or legal precedent applying a bar to employee-requested elections after agency-imposed unit consolidations, FLRA Chairman Susan Tsui Grundmann, a Biden appointee, did not hesitate to rule that Blue Ridge Parkway employees’ December 2021 petition to remove AFGE monopolists from their workplace was invalid, because the FLRA had three months earlier consolidated their work unit with another group of NPS employees.
Ms. Kiko, appointed by then-President Donald Trump, expressed concern in her concurring opinion about the FLRA’s “plainly inequitable” policy of empowering union bosses who no longer wish to exercise monopoly-bargaining power over a particular set of employees to withdraw at any time, and for any reason, while “subjecting employee decertification petitions to a “significantly more arduous” and, frankly, confusing path.
But she went along with Ms. Grundmann’s power grab all the same.
Despite the recent outrageous FLRA ruling, the National Right to Work Legal Defense Foundation attorneys who have been providing free legal assistance to Blue Ridge Parkway employees seeking a vote to decertify AFGE bosses, currently led by petitioner Lauren Labrie, are optimistic a vote will happen soon anyway.
But regardless of the outcome, this battle exposes the depth of the Biden administration’s contempt for employees’ right to make a free choice about whether or not they want a union.
• Mark Mix is president of the National Right to Work Legal Defense Foundation.
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