73 FLRA No. 58

 

UNITED STATES

DEPARTMENT OF HOMELAND SECURITY

IMMIGRATION AND

CUSTOMS ENFORCEMENT

(Agency)

 

and

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES, AFL‑CIO

(Union/Petitioner)

 

WA‑RP‑22‑0051

 

_____

 

ORDER DENYING

APPLICATION FOR REVIEW

 

October 7, 2022

 

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and Susan Tsui Grundmann, Members

(Member Grundmann concurring; Member Kiko dissenting)

 

I.             Statement of the Case

 

                After the Union filed a disclaimer‑of‑interest petition, the President of AFGE, Council 118, AFL-CIO (the Applicant) requested to intervene.  Regional Director Jessica S. Bartlett (the RD) found that § 2421.11(b)(2) of the Authority’s Regulations permits only labor organizations, agencies, and activities to intervene in representation proceedings.[1]  Because the Applicant did not belong to one of those categories, the RD denied the intervention request.

 

                In an application for review (application), the Applicant now argues that the RD misinterpreted § 2421.11 of the Authority’s Regulations.  However, because the Applicant fails to establish that the RD’s interpretation or application of § 2421.11 is deficient, we deny the application. 

 

II.            Background and RD’s Decision

 

The Union filed a petition to disclaim representational interest in a bargaining unit of nonprofessional Agency employees.  Thereafter, the Applicant requested to intervene for purposes of raising arguments concerning the Authority’s schism doctrine.[2] 

 

In the RD’s Decision and Order (RD’s Decision), the RD found that § 2421.11(b)(2) of the Authority’s Regulations governs who may intervene in a representation proceeding.  As relevant here, § 2421.11(b)(2) defines a “party” as “[a]ny labor organization or agency or activity . . . [w]hose intervention in a proceeding has been permitted or directed by the Authority.”[3]  Applying this section, the RD determined that the Applicant, as an individual or designated representative, did not qualify as a labor organization, agency, or activity.  Consequently, the RD found that the Applicant lacked standing to intervene in the proceeding. 

 

Accordingly, the RD dismissed the intervention request and did not consider the Applicant’s schism arguments.

 

The Applicant filed the application on August 10, 2022.  The Agency filed an opposition to the application on August 16, 2022, and the Union filed an opposition to the application on August 24, 2022. 

 

III.          Analysis and Conclusion:  The RD did not fail to apply established law.

 

                At the outset, we emphasize that, while we recognize our dissenting colleague’s concerns regarding this matter, the only decision before us is the RD’s decision to deny the Applicant’s intervention request.  As such, our resolution of the instant application does not address the merits of the underlying disclaimer petition.  We also emphasize that, even within this limited context, the application presents a very narrow issue:  whether the Authority’s Regulations permit individuals to intervene in disclaimer proceedings.  In this regard, the specific argument the Applicant makes in its application is that the RD misapplied § 2421.11(a) of the Authority’s Regulations because that regulation allegedly allows an “individual” to file a “request” in a proceeding.[4]  We note that the Applicant does not argue that either he or Council 118 constitutes a labor organization within the meaning of the Authority’s Regulations.  Accordingly, we do not address that issue – or any other issues that the application does not raise.[5]

 

Section 2422.31(c)(3)(i) of the Authority’s Regulations provides that the Authority may grant review of an application where, as relevant here, “[t]here is a genuine issue over whether the [RD] has . . . [f]ailed to apply established law.”[6]  Turning to the Applicant’s specific legal argument, § 2421.11(a) of the Authority’s Regulations defines a party as “[a]ny . . . individual filing a charge, petition, or request.”[7] 

 

Under general principles of statutory construction, it is well‑established that “the specific governs the general.”[8]  This canon of construction applies equally to the interpretation of regulations.[9]

 

Here, the Applicant’s reliance on § 2421.11(a) is unavailing given language in § 2421.11(b)(2) that precisely describes the entities permitted to intervene in Authority proceedings.  By defining the term “party” as a “labor organization or agency or activity . . . [w]hose intervention has been permitted or directed by the Authority,”[10] § 2421.11(b)(2) distinguishes intervenors from parties that have simply filed a “charge, petition, or request” under § 2421.11(a).[11]  Applying the conventional canon of construction that specific regulatory provisions govern over general regulatory provisions,[12] § 2421.11(b)’s intervention‑specific language controls over § 2421.11(a) for purposes of determining the Applicant’s standing to intervene.[13]  Therefore, even assuming that the Applicant is an “individual” who has filed a “request” within the meaning of § 2421.11(a),[14] the Applicant’s argument provides no basis for finding that the RD erred by applying § 2421.11(b)(2) rather than § 2421.11(a).[15]

 

                Further, although the RD resolved the intervention request under § 2421.11(b)(2),[16] the RD’s Decision is consistent with interrelated sections of the Authority’s Regulations that address intervention procedure.  Section 2422.8, which prescribes requirements for filing an intervention request in a representation proceeding, permits “[l]abor‑organization intervention requests” and “[a]gency or activity intervention.”[17]  However, § 2422.8 omits any reference to individual intervention requests or individual intervention.[18]  

 

In addition, § 2421.12 defines “intervenor” as “a party in a proceeding whose intervention has been permitted or directed by the Authority.”[19]  This definition repeats the language found in § 2421.11(b)(2) and, most notably, makes no reference to individuals.

 

 

 

For the foregoing reasons, we find that the Applicant has not demonstrated that the RD failed to apply established law.[20]  

 

IV.          Order

 

We deny the application.

 

 

Member Grundmann, concurring:

 

I agree with many of the concerns that Member Kiko sets forth in her dissent.  As she notes, the Federal Service Labor-Management Relations Statute gives employees the rights “to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them.”1  Here, a bargaining unit of approximately 5,900 employees went through the entire process of organizing and voting for AFGE as their exclusive representative – only to have their representational rights torn away without having any say in the matter.2 

 

I acknowledge that it is AFGE, not Council 118, that held the certification here.3  At the same time, there is no dispute that the President of Council 118 (the Applicant) has been representing these employees.  The Regional Director (RD) found that, because the Applicant is not a “labor organization,” he had no right to even participate in the disclaimer proceedings that yanked collective-bargaining rights from the 5,900 employees he has been representing.

 

The Applicant does not argue to us that the RD erred in her interpretation of the term “labor organization,” so I agree that it is not appropriate to address that issue.  Further, I acknowledge that representation proceedings are non-adversarial in nature.4  However, if the Authority’s current Regulations and practices governing disclaimer proceedings do not permit anyone – including the President of the Council that has been representing employees – to represent those employees’ interests to the extent that they diverge from AFGE’s, then it makes me question whether those Regulations and practices should be reconsidered.  Nevertheless, this proceeding before us does not provide us the opportunity to revise the current Regulations.

 

The Applicant has not taken the opportunity to argue to us that established law or policy warrants reconsideration, as he could have done.5  Moreover, while I agree with Member Kiko that “this case poses novel labor-management‑policy questions,”6 the Applicant also did not take the opportunity to argue that review is warranted because there is an absence of relevant Authority precedent.7  Given the narrow issues that the Applicant has chosen to present to us, I agree that we are constrained to deny the application. 

 

Accordingly, I concur.

 

 

Member Kiko, dissenting:

 

At first glance, this case presents nothing more than a narrow procedural question:  Did the Regional Director (RD) err in finding that the Authority’s Regulations do not permit individuals to intervene in representation proceedings?  Upon closer examination, however, the application for review (application) exposes a flaw in the Authority’s statutory and regulatory scheme by which unions may abandon their bargaining units without as much as a word from employees.  As such, this case poses novel labor‑management‑policy questions necessitating a more thorough examination of the RD’s findings than the majority affords.  Because the majority’s decision tacitly affirms an outcome that it is wholly inconsistent with the spirit of the Federal Service Labor‑Management Relations Statute (the Statute),1 I dissent.

 

One of the fundamental tenets of the Statute is that employees have the right “to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them.”2  Twelve years ago, a nationwide bargaining unit of nonprofessional Immigration and Customs Enforcement (ICE) employees chose the American Federation of Government Employees (AFGE) to represent them.3  Obtaining a union’s representation is no small feat – an employee must submit a petition to the Authority demonstrating that thirty-percent of the proposed bargaining unit wishes to be represented by the union, followed by a secret ballot election in which the union receives a majority of the votes cast.4  If any employee sought to decertify AFGE as exclusive representative, then the same requirements – a petition supported by a thirty‑percent showing of interest followed by an election – would apply.5

 

Yet, the only steps necessary for AFGE to relieve itself of any responsibility for the ICE bargaining unit was to file a disclaimer petition with the Authority – no explanation or justification needed – and await the RD’s rubber stamp.  This disclaimer process, completed here in a mere thirty days,6 is plainly inequitable when compared to the significantly more arduous path that employees must take to decouple their bargaining unit from their exclusive representative under the Statute.  Moreover, AFGE’s disclaimer leaves ICE employees – who “preserve national security and public safety” by enforcing immigration laws and combating cross-border crime7 – without union representation or a collective‑bargaining agreement.  These are the thousands of employees who put their lives on the line every day under extremely stressful conditions to protect our borders.

Equally problematic is the Statute depriving Council 118, or any of its approximately 5,900 employees, of an opportunity to participate in the proceedings before the RD.8  Once the RD denied the Council 118 President’s intervention request, the ICE bargaining unit was effectively barred from providing any input regarding the termination of its union representation and longstanding collective‑bargaining agreement.  Had the RD permitted employee participation, neither AFGE nor ICE would have been prejudiced because, as the concurrence correctly states, “representation proceedings are non-adversarial in nature.”9

 

By noting that its decision “does not address the merits of the underlying disclaimer petition,” the majority suggests that employees may later obtain review of the RD’s decision granting AFGE’s petition.10  Surely, all ICE employees represented by AFGE possess a statutory right to file an application with the Authority challenging the RD’s merits decision.11  But this right provides little protection where, as here, no party has represented the employees’ interests, or raised arguments on their behalf, in merits proceedings before the RD.  Rather conveniently, AFGE and ICE “waived their right to a hearing and to file an application for review,” which abbreviated the proceedings to the bare minimum.12  Given AFGE and ICE’s shared interest in the RD granting the disclaimer petition,13 the employees’ best chance for a meaningful opportunity to participate in disclaimer proceedings was before the RD sanctioned AFGE and ICE to undo the bargaining unit’s representation and collective-bargaining agreement.14

 

To the employees’ further detriment, the RD summarily approved AFGE’s petition without analyzing whether AFGE had a proper purpose or good‑faith basis for requesting disclaimer.  The federal courts and the National Labor Relations Board (NLRB) have consistently required parties to demonstrate good faith or a proper purpose in disclaimer proceedings arising under the National Labor Relations Act (NLRA).15  Indeed, the good-faith requirement is explicitly stated in the           Office of the General Counsel’s Representation Case Handling Manual (RCHM).16  In explaining the need for a union to establish a proper purpose or good faith, the U.S. Court of Appeals for the Ninth Circuit observed that “[s]ound policy reasons counsel against . . . unions repudiating contractual obligations whether to promote harmony with other unions or to resolve some intra-union political dispute.”17  Here, the evidence suggests that AFGE’s disclaimer of interest in the ICE bargaining unit is part and parcel of an intraunion political dispute.18  Nonetheless, with a mere three-sentence analysis,19 the RD foreclosed any potential inquiry into the basis for AFGE’s disclaimer petition.

 

When fashioning the Statute, Congress had no reason to believe that an active union might voluntarily waive its interest in a bargaining unit with a full complement of union officers and stewards, numerous dues‑paying members, and a collective‑bargaining agreement in effect.  And I am hard pressed to find that the Statute, which does not mention the term “disclaimer,” would subordinate employees’ explicit statutory rights to a union’s implied disclaimer interest. 

 

Above all, the unfair result forced on ICE’s nonprofessional bargaining unit has made it abundantly clear that the Statute and the Authority’s Regulations must be amended to enshrine an affected employee’s right to participate in disclaimer proceedings.20  If the Statute can do nothing to protect employees whose union has unilaterally decided to sever its relationship with them, then the Statute has undoubtedly failed to “safeguard[] the public interest,” or facilitate “the effective conduct of public business.”[21]  With these considerations in mind, I must dissent.