The Federal Labor Relations Authority has to hear an unprecedented case, in for review. Normally, once a federal union is certified, no decertification vote can occur for at least a year. The question is: can a decertification vote take place within a year, if the original certification occurred without a vote in the first place? The Federal Drive with Tom Temin talked about that with Mark Mix, the president of the National Right to Work Legal Defense Foundation.
Tom Temin: Mr. Mix. Good to have you on.
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Mark Mix: Tom, thanks for the opportunity to talk to you about this very interesting case.
Tom Temin: So in this case, there were already two bargaining units and the petitioner was already in a union. And then AFGE decided to combine the two units into one new unit. And that is what she’s challenging that the new bargaining unit was not certified because there was no election. Is that basically the outline of this case?
Mark Mix: Well, she’s not contesting the certification of the union and the consolidation. What she’s contesting is her ability to try to have a decertification election and Tom, a decertification election means that the employees in the unit vote as to whether or not the union will continue to represent them in the workplace. In this case, the AFGE [American Federation of Government Employees] is the bargaining unit, they’re a Local 446 and the NAGE [National Association of Government Employees], they were two units that had these employees. And you know, there’s not been a contract agreement or negotiation since 1988 for the AFGE and for 2000 for the NAGE. So there’s no election process here. There’s no certification bar, and what she wants, is she wants the ability that she is secured the proper amount of signatures to actually trigger a deauthorization election. And what the regional director said was that deauthorization election was barred under the statute because it occurred within 12 months of the consolidation of these two units.
Tom Temin: And by the way, we are talking about the National Park Service employees in the Blue Ridge Parkway region.
Mark Mix: Yeah, that’s correct. In the National Park system. That’s right.
Tom Temin: Right. And just a clarification question. The regional director is almost the equivalent of an administrative law judge at the Merit Systems Protection Board they make the initial decision. And then if people don’t like it, they can appeal to the authority itself.
Mark Mix: Yeah, that’s correct. It’s kind of like the National Labor Relations Board, too, in that regard Tom, the National Labor Relations Board has regional offices with regional directors. And the case that’s brought in front of the regional director is decided there in the region, and then in the appellate process would come up to the full National Labor Relations Board in the private sector. And under the FLRA, it happens basically the same way here.
Tom Temin: And the analysis done by the board members, the three member FLRA itself says this is without precedent. And so that’s why they’re agreeing to take in briefs from both sides as to the merits here.
Mark Mix: Yeah, you know, the statute is really clear about three bars. And when we say bars, these are bars to action that are written into the statute. And under section 7, 111. There is there are three bars that are created to protect the union immediately after an election after a contract is negotiated. And then these are protections that exist in the law. Interestingly enough, the consolidation of these two units occurs under a different section of the law. And that section of law specifically does not have any of these bars created. So you know, the board is going to look at this. And if you interpret the intent of Congress and the statutory language, they have to rule that these bars don’t exist under this consolidation piece of the statute. It does exist, we don’t contest the fact that it exists under the original section 7111, which deals with the certification of unions as bargaining agents for workers. There’s a 12 month bar to a decertification election, there’s a bar, a contract bar to when the contract expires, that’s all written in the statute. But if you look at the legal brief, in this case, on behalf of Erin Lamb and the employees in this unit, you find that the section that the regional director used to block her ability to have a vote as to whether or not the union will continue as a representative, they went to a different section, and this language is not there. And when you find it, you find another section beyond it, which is kind of interesting. So the Congress looked at it in two different places. They applied it in two different places, but they didn’t apply it here. So this is kind of the novel concept. And unfortunately, what we hope is that the Federal Labor Relations authority will look at it and say, the clear intent of Congress was not to include it in this consolidation section that these bars would not exist in a consolidation and these employees would have the right to have this vote as to whether or not the union will continue to represent them in the workplace.
Tom Temin: Got it. We’re speaking with Mark Mix. He’s president of the National Right to Work Legal Defense Foundation. And just as an aside, do you think one of the issues is the fact that of the two consolidated units, one was non-professional and one was professional? Nobody was managerial. But is there something of a culture clash in maybe the expectations from representation?
Mark Mix: Yeah, I think that’s part of it. Tom, you know, when you start throwing these units together, and then you start negotiating contracts that bind all employees and you have a different, to use your word, culture between the members of the unit. That’s when people I think, begin to raise issues about, you know, hey, I’m this or I’m that and we do this and we do that. And this other group of people that now been consolidated with this do something completely different. So I think it makes the negotiations a little bit more difficult, perhaps. But one of the things you think about is once the union is the exclusive bargaining agent for every single member, that unit, whether they voted for voted wanted the union, or voted no for a union, perhaps in this case, there’s been no election since, you know, going back to the 1980s. And in the case of the FTE, and in the case of the the other bargaining unit was 2000. So there’s no basic, you know, election or anything that’s occurred other than the regional director saying, you know, the AFGE is petitioning for the consolidation, the regional director agreeing to that, and then these employees coming in and saying, we want a chance to vote on this. And frankly, it’s kind of interesting, because the decertification petition occurred in December of 2021. And the RD ruled, the regional director, ruled in March of 2022, that we denied the petition and, and so she filed a petition after a September decision to bind, to consolidate the two units.
Tom Temin: And getting back to that issue of the fact that there had not been a vote on either union in at least 20 years and almost 30 years, in one case. What happens in the sense of employee turnover, because probably no one that was there for the original vote back in the 80s even works there anymore. So as people come in, they’re automatically in the union, regardless of whether they personally voted for it?
Mark Mix: Yeah, that’s correct, Tom, that’s a great point. I mean, most of these unions in the federal government and interestingly enough, in the private sector as well are what we call legacy unions. I mean, they’ve been there for 30 or 40 or 50 years in some cases. And so there’s never been an election. Now, there’s been renegotiations of contracts. That just to go back to Section 7111 of the statute that says, once a contract is negotiated, there’s a bar for when you can decertify. It’s called a contract bar. That’s in the statute. But there’s been no election here. This was a consolidation without any election without any opportunity for the employees to voice their opinion about the consolidation, and then have to deal with it and then being blocked when they tried to exercise their voice. But you’re right. We think statistics show that only really about maybe less than 10% of all union members have ever voted on the contract to certify a union. And that’s a private area private sector statistic. But in the public sector, I suspect it’s the same.
Tom Temin: And the certification vote versus voting on a contract negotiation. Different dates here, correct?
Mark Mix: Absolutely. Absolutely. So most of our experiences with the private sector, so what happens in the private sector is that when a contract is agreed to, employees are barred for up to three years from trying to decertify a union after a contract has been negotiated. We have numerous cases on behalf of thousands and thousands of employees across the country where they, a contract is negotiated. We have one contract right now with the United Steelworkers a case up in Pennsylvania, where the union put a tentative agreement in front of the workers. They voted it down once, and they voted it down a second time. But yet the union officials agreed to it because they wanted to start the contract bar to stop the employees from a decertification effort that was occurring in the workplace. So the employees voted down the contract twice, but the union approved it unilaterally. And they approve it unilaterally so they could get the contract bar triggered. So the vote couldn’t occur for three years. That’s kind of the way this works.
And when you look at it from the employee perspective, you think, why wouldn’t the union want the employees to vote I mean, this is what they claim to represent these employees. And when the employees qualify, getting the requisite number of signatures to trigger a decertification, the union comes in and says, oh, no, you can’t do that. We’re arguing you can’t do that because, you know, we have this contract bar, we have an election bar, or we have some bar that blocks employees from exercising their rights. I think the safest thing to do is allow the workers to vote by secret ballot election and let the union’s future survive on the employees they claim to represent whether they vote yes or no. And that’s really the solution here. We hope the FLRA will look at this, and at least allow the election to go forward because the union may win the election. And if they do, more power to them, and that would trigger the next bar so it couldn’t happen again for 12 months. That’s what’s going on here. So we hope the board looks at it. And they look at the intent of Congress. And they look at the statutory language, as it appears inked on paper, as opposed to trying to add anything to it or subtract anything from it. And if they do, we’re pretty confident that they have got let this election proceed.
Tom Temin: In your experience with the FLRA, do their decisions generally hold because in some cases, even these administrative bodies of the federal government get challenged in a higher court and an actual federal court?
Mark Mix: Yeah. You know, in going back to kind of where we are with the National Labor Relations Board. I mean, the National Labor Relations Board decides and there are certain cases that can go to the federal court for you know, another appeal. There are certain cases at the NLRB, they can’t go for that the NLRB has sole jurisdiction. Like for an election case, for example, you can’t go on up to the federal court. Under the FLRA, I guess we’ll see what the what the the FLSA rules in this case, because as you mentioned in the intro, it’s kind of a novel concept. There’s this is really kind of, you know, a clean sheet of paper as it relates to the issue in front of them. It’s not a clean sheet of paper, as it relates to the statutory language. It’s pretty clear. If you look at the briefs in this case, the election bars that are created in the statute are in one section of law, the consolidation situation is under a completely different section. And those bars don’t exist there. So we hope that the federal government won’t apply the bars to the consolidation process, because if they do, think about that, I mean, they could start consolidating any unit they want. And the employees would really have no say about that. And that’s a real problem for employee rights.
Tom Temin: Mark Mix is president of the National Right to Work Legal Defense Foundation. Thanks for joining me.
Mark Mix: Tom, thank you. It’s a privilege to be on with you, appreciate the opportunity.
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