Freedom Foundation files amicus brief with the FLRA in union decertification case

Freedom Foundation files amicus brief with the FLRA in union decertification case

Freedom Foundation files amicus brief with the FLRA in union decertification case

In an amicus brief recently submitted to the Federal Labor Relations Authority (FLRA), the Freedom Foundation supported a federal employee seeking to establish that the agency’s rules impermissibly limit the ability of her and her colleagues to decertify an unwanted union.

Just as it’s harder for an individual to get out of a union than to get into one, so it is with an entire bargaining unit. While a union has resources and staff to campaign for certification as the exclusive representative of a bargaining unit, an effort to decertify a union falls on the shoulders of dissatisfied members brave enough to take a stand.

To succeed, an advocate for decertification normally must gather signatures from 30 to 50 percent of the workers in the bargaining unit to trigger a vote and then prevail in the election. Further, it’s not uncommon for laws to sharply limit when employees can change or decertify an unwanted union.

These hurdles make unseating an incumbent union hard enough. But it’s even more difficult when an agency adds restrictions that are not authorized by the law, as happened to an employee of the National Park Service’s Blue Ridge Parkway.

The employee’s petition to decertify the American Federation of Government Employees was dismissed by a regional director of the FLRA on the basis of an FLRA regulation that bears only a vague resemblance to the statute it ostensibly implements, the Federal Service Labor-Management Relations Statute.

The regional director held that, under the regulation, the employee’s petition was untimely because it was filed within a year of the union’s certification as the exclusive representative of the bargaining unit.

The petitioning employee, represented by the National Right to Work Legal Defense Foundation, filed with the FLRA an application for review of the regional director’s dismissal of the petition. Finding an absence of precedent on the issues, the FLRA invited interested persons to submit briefs on whether the regulation or the statute apply to bar a decertification petition filed under the circumstances of the case.

The Freedom Foundation submitted a brief to the FLRA on Aug. 29. It called the FLRA’s attention to the text of the statute and argued that the agency should follow the law rather than its own conflicting regulation and precedents.

While the law does prohibit certifying a new union as the representative of a bargaining unit within a year of an election that led to the certification of a different union, that prohibition has nothing to do with a decertification petition seeking to remove the union from the workplace.

Unfortunately, agencies tend to go astray in interpreting a statute by overlaying what they imagine to be public policy, either theirs or Congress’s.

As this case shows, they sometimes need to be reminded to just stick to the text of the law.

Public Employee Labor Relations Specialist
David S. McFadden served at the U.S. Department of Labor in the administrations of President George W. Bush and President Donald J. Trump. He was an attorney-advisor at the District of Columbia Public Employee Relations Board and senior associate in the law firm of Gelpi and Associates in New Orleans. He has his bachelor’s degree from the University of Chicago, a J.D. from the University of Akron, and an LL.M. from Tulane University.