U.S. Federal Labor Relations Authority

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United States Department of Homeland Security, Immigration and Customs Enforcement (Agency) and American Federation of Government Employees, AFL-CIO (Union/Petitioner)

73 FLRA No. 58





















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.










[1] 5 C.F.R. § 2421.11(b)(2).

[2] Intervention Request at 1-2; see generally Dep’t of the Navy, Pearl Harbor Naval Shipyard Rest. Sys., Pearl Harbor, Haw., 28 FLRA 172, 173-74 (1987).

[3] 5 C.F.R. § 2421.11(b)(2).

[4] Application Br. at 2 (emphasis in original).

[5] USDA, Forest Serv., Albuquerque Serv. Ctr., Hum. Res. Mgmt., Albuquerque, N.M., 72 FLRA 261, 261 n.1 (2021)             (Chairman DuBester dissenting on other grounds) (stating that the Authority does not consider issues not raised in application for review); SSA, Balt., Md., 58 FLRA 170, 170 n.3 (2002) (stating that the Authority would not address determinations that are not challenged in application for review); U.S. DOJ, 50 FLRA 439, 439 n.1 (1995) (stating that the Authority does not address findings not challenged in application for review). 

[6] 5 C.F.R. § 2422.31(c)(3)(i).

[7] Id.; 5 C.F.R. § 2421.11(a).

[8] RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)); see also U.S. Dep’t of Transp., FAA, Anchorage, Alaska, 61 FLRA 176, 177 n.6 (2005) (recognizing applicability of general rules of statutory construction). 

[9] See, e.g., Karczewski v. DCH Mission Valley LLC, 862 F.3d 1006, 1015, 1016 n.4 (9th Cir. 2017); Tasker v. DHL Ret. Sav. Plan, 621 F.3d 34, 43 (1st. Cir. 2010) (Tasker); see also AFGE, Loc. 953, 66 FLRA 543, 545 (2012) (finding that principles of statutory construction apply to regulations).

[10] 5 C.F.R. § 2421.11(b)(2) (emphasis added).

[11] Id. § 2421.11(a).

[12] See Tasker, 621 F.3d at 43.

[13] See Flores v. Barr, 934 F.3d 910, 917 (9th Cir. 2019) (holding that a general regulation concerning expedited removal did not govern over specific regulatory provision providing exception for minors); Tasker, 621 F.3d at 43 (finding that a general regulation prohibiting the reduction of certain benefits did not govern over a “highly specific regulation that clearly and unambiguously” permitted an action that would reduce benefits).

[14] Application Br. at 2.

[15] To the extent the Applicant argues that § 2421.11(b)(2) does not constitute a limitation on an individual’s ability to obtain party status under § 2421.11(a), we note that the suggested construction would render § 2421.11(b)(2) superfluous and lead to illogical results – any entity filing an intervention request would, by virtue of simply filing the request, be an intervenor.  See U.S. v. Alisal Water Corp., 431 F.3d 643, 653 (9th Cir. 2005) (“When interpreting a regulation, we must avoid an interpretation that would render another regulation superfluous.”). 

[16] RD’s Decision at 2.

[17] 5 C.F.R. § 2422.8.

[18] We note that the RD determined that Council 118 operated as a “designated representative” of the Union and, thus, Council 118 is not itself a “labor organization under the Statute.”                     RD’s Decision at 2.  As explained above, we do not address that issue because the application focuses on the Applicant’s intervention rights as an individual and does not claim that either he or Council 118 is a labor organization.  See Application Br. at 2 (emphasizing “individual” in 5 C.F.R. § 2421.11(a)).

[19] 5 C.F.R. § 2421.12.

[20] In the event that the Authority reverses the RD and finds that “intervention is authorized,” the Applicant requests an opportunity to file “a supplemental legal brief . . . to address the legal issues of unusual circumstances and schism.”  Application Br. at 2.  Because we deny the application for review, we need not address this request. 

1 Dissent at 7 (quoting 5 U.S.C. § 7101(a)(1)).

2 Although the instant application for review involves only the Regional Director’s (RD’s) denial of the Council 118 President’s intervention request – not the RD’s decision on the merits of the disclaimer – I take official notice that she subsequently granted AFGE’s disclaimer petition.  See Aug. 11, 2022 Decision and Order; see also NTEU, 70 FLRA 100, 101 (2016) (“The Authority has found it appropriate to take official notice of other [Federal Labor Relations Authority] proceedings.”).

3 RD’s Decision at 2.

4 See, e.g., U.S. Dep’t of the Air Force, Travis Air Force Base, Cal., 64 FLRA 1, 7 (2009).

5 5 C.F.R. § 2422.31(c)(2) (One ground for review is when the application for review demonstrates that “[e]stablished law or policy warrants reconsideration[.]”).

6 Dissent at 7.

7 5 C.F.R. § 2422.31(c)(1) (One ground for review is when the application for review demonstrates that “[t]he decision raises an issue for which there is an absence of precedent[.]”).

1 5 U S.C. §§ 7101-7135.

2 Id. § 7101(a)(1).

3 Joint Stipulation of Facts (Stipulation) at 1 (“On May 21, 2010, AFGE was certified as the exclusive representative of the following unit of [ICE] employees.”).

4 5 U.S.C. § 7111(b)(1)(A).

5 Id. § 7111(b)(1)(B).

6 See Stipulation at 1 (stating that AFGE filed its petition seeking disclaimer “[o]n July 12, 2022”); RD’s Decision on AFGE’s Petition (Disclaimer Decision) at 2 (granting AFGE’s disclaimer of interest on August 11, 2022).

7 ICE’s Mission, ICE (Aug.17, 2022), https://www.ice.gov/mission.

8 In denying the Council 118 President’s intervention request, the RD found that Council 118, “[a]s a designated representative of AFGE,” did not qualify as “a labor organization under the Statute.”  RD’s Decision and Order on Request for Intervention (RD’s Decision) at 2.  However, because the RD did not explain this finding further, the RD’s Decision provides an insufficient basis to conclude that Council 118 is not a “labor organization” as defined in the Statute for purposes of intervention.  5 U.S.C. § 7103(a)(4) (defining a labor organization as “an organization composed . . .  of employees, in which employees participate and pay dues, and which has as a purpose the dealing with an agency concerning grievances and conditions of employment”).

9 Concurrence at 5.

10 Majority at 2.

11 5 U.S.C. § 7105(f) (providing that the Authority may review a representation action “upon application by any interested person filed within 60 days after the date of the action (emphasis added)); see also U.S. Dep’t of VA, 65 FLRA 259, 262-63 (2010) (affirming that employees whose representation status is changed based on a regional director’s decision possess standing to file applications under § 7105(f)).

12 Disclaimer Decision at 2.

13 See Stipulation at 1 (Agency stipulating that it “has no objections to AFGE’s request” for revocation of unit certification and waiving right to hearing).

14 See Revocation of Certification at 1 (revoking AFGE’s certification after noting that the parties had “waived their right to file an application for review of the Decision and Order” approving AFGE’s disclaimer petition).

15 See, e.g., Bensel v. Allied Pilots Ass’n, 387 F.3d 298, 311 (3d Cir. 2004) (holding that an exclusive representative’s disclaimer of interest must be “in good faith and for a proper purpose”); Dycus v. NLRB, 615 F.2d 820, 826 (9th Cir. 1980) (finding that a disclaimer should not be given effect if it is “inconsistent with the union’s conduct,” or “made for an improper purpose”); United Steel Workers of Am., Loc. 14693, AFL-CIO-CLC, 345 NLRB 754, 755 (2005) (“To be effective, a union’s disclaimer must be clear, unequivocal, and in good faith.”); see also Turgeon v. FLRA, 677 F.2d 937, 939-40 (D.C. Cir. 1982) (noting that “the legislative history of the [Statute] makes clear [that] the structure, rule, and functions of the Authority . . . were closely patterned after the structure, role, and functions of the NLRB . . . under the [NLRA]”).

16 RCHM at 192‑93 (Feb. 20, 2015), https://www.flra.gov/system/files/webfm/OGC/Manuals/REP%20Proceedings%20.... (“To be effective, a disclaimer must be made in good faith, be clear and unequivocal, and leave no doubt that a matter relating to the incumbent’s representation does not exist with respect to the bargaining unit.” (emphasis added) (citing DOD, Dep’t of the Navy, Portsmouth Naval Shipyard, Portsmouth, N.H., 14 FLRA 76 (1984))); see also id. at i (“The [RCHM] provides guidance for the FLRA, O[ffice of the] G[eneral] C[ounsel] staff when processing petitions filed under the Statute.”).

17 Toyota Landscape Co. v. Building Material & Dump Truck Drivers, Loc. 420, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 726 F.2d 525, 528                   (9th Cir. 1984).

18 See Agency’s Opp’n Br. at 2 (stating that “there is evidence . . . to support” the existence of a “policy dispute”); AFGE’s Opp’n Br. at 3 n.5 (citing Stephen Dinan, ICE Officers Demand Freedom from AFL‑CIO over Mismanagement,                      ‘Defund the Police’ Stance, The Washington Times (June 21, 2022), https://www.washingtontimes.com/news/2022/jun/21/ice-officers-demand-fre...); see also Erich Wagner, AFGE Will Split from Its ICE Union Over Ideological Divide, Government Executive (July 14, 2022), https://www.govexec.com/workforce/2022/07/afge-will-split-its-ice-union-... (noting Council 118’s complaint against AFGE filed with the Department of Labor and providing statements from Presidents of Council 118 and AFGE concerning ideological differences).

19 The RD’s entire analysis:  “Section 2421.11 (b)(2) of the Authority’s Regulations provide that only a labor organization, agency, or activity may intervene in a representation proceeding.  As a designated representative of AFGE, Council 118 is not a labor organization under the Statute and, therefore, has no standing to intervene in this proceeding.  Because Council 118 does not have standing to intervene in this matter, I will not address the Council’s schism arguments.”  RD’s Decision at 2.

20 I agree with Member Grundmann’s suggestion that the Authority’s “Regulations and practices should be reconsidered” to prevent future injustices of this kind.  Concurrence at 5.

[21] 5 U.S.C. § 7101(a)(1)(A)-(B).




















I.Statement of the Case


On July 12, 2022, the American Federation of Government Employees, AFL‑CIO (AFGE or Union) filed the petition in this proceeding, seeking to disclaim representational interest in the unit of nonprofessional employees employed by the U.S. Department of Homeland Security, Immigration and Customs Enforcement (Agency).


On July 27, 2022, Chris Crane, President of the American Federation of Government Employees, Council 118, AFL-CIO (Council 118), requested to intervene in this proceeding.  Crane, on behalf of Council 118, argues that that a basic intra-union conflict over a fundamental policy question exists, and that the Authority’s schism doctrine should apply.  AFGE opposes Crane’s request to intervene on the basis that, neither the criteria for intervention, nor the criteria for schism have been met.  The Agency has not provided a position on the intervention request at this time.




AFGE is the certified exclusive representative of the following unit of employees, as amended in Case No. WA-RP-10-0022:


Included:               All non-professional employees employed by the United States Department of Homeland Security, U.S. Immigration and Customs Enforcement, including Headquarters and the Office of Detention and Removal Operations, Agency-Wide.


Excluded:           All professional employees, management officials, supervisors, and employees described in 5 U.S.C. §7112(b)(1), (2), (3), (4), (6) and (7), and all employees of the Office of Investigations.


Council 118 is AFGE’s designated representative and bargaining agent for the above unit of employees, and acts on behalf of constituent locals nationwide in dealings between AFGE and the Agency at the national level.


III.Analysis and Conclusions


Section 2421.11(b)(2) of the Authority’s Regulations provide that only a labor organization, agency, or activity may intervene in a representation proceeding. As a designated representative of AFGE, Council 118 is not a labor organization under the Statute and, therefore, has no standing to intervene in this proceeding.  Because Council 118 does not have standing to intervene in this matter, I will not address the Council’s schism arguments.




Council 118’s request to intervene in this matter is denied.


V.Right to Seek Review


Under section 7105(f) of the Statute and section 2422.31(a) of the Authority’s Regulations, a party may file an application for review with the Authority within sixty days of this Decision.  The application for review must be filed with the Authority by October 3, 2022, and addressed to the Chief, Office of Case Intake and Publication, Federal Labor Relations Authority, Docket Room, Suite 201, 1400 K Street, NW, Washington, DC 20424–0001.  The parties are encouraged to file an application for review electronically through the Authority’s website, www.flra.gov.1







Jessica S. Bartlett

Regional Director, Washington Region Federal Labor Relations Authority



Dated: August 3, 2022



1 To file an application for review electronically, go to the Authority’s website at www.flra.gov, select eFile under the Filing a Case tab and follow the instructions.