GovernmentExecutive.com

A small agriculture employees' union took legal action last week that could delay a major upcoming election to settle on a single union to represent of thousands of Homeland Security Department workers.

Roughly 21,000 employees in DHS' Customs and Border Protection bureau are scheduled to choose to be represented by the American Federation of Government Employees, the National Treasury Employees Union or no union, in an election beginning May 9.

But the National Association of Agriculture Employees filed a motion in the U.S. Court of Appeals for the Ninth Circuit to delay the election in an attempt to gain back some of the members it stands to lose in the move to one union.

The Federal Labor Relations Authority ordered the vote after CBP petitioned to consolidate non-Border Patrol employees under a single bargaining group. FLRA put the two largest unions, NTEU and AFGE, on the ballot. NAAE, which represents about 2,500 agricultural inspectors moved from the Agriculture Department into DHS when the department was created in 2003, is not an option.

The agriculture union claimed in its motion that more than 800 of its members are GS-11 agricultural specialists who qualify as professionals, and as a result should not be lumped into a union with nonprofessionals.

"It's a nice blow to the old morale to be determined no longer to be professional employees," said Kim Mann, a lawyer representing NAAE. "But the significance is this: Professional employees have a right to an election. And they have a right to elect whether to be included in a unit with nonprofessional employees."

U.S. code governing the civil service defines professional employees as those in jobs requiring advanced degrees, use of discretion and judgment, performance of intellectual rather than physical work and whose output cannot be measured in relation to time.

NAAE is also attacking the larger unions' ability to represent the agricultural inspectors in CBP.

"The two unions slated to battle for the right to represent all of CBP -- AFGE and NTEU -- do not currently represent employees with the protection of American agriculture as one of their primary missions," said Michael Randall, NAAE president, in a court document supporting the motion for a stay. "Their union staffs and bargaining unit members lack any meaningful knowledge of that mission or how it is to be fulfilled."

Whether or not NAAE ultimately wins its claim in federal court, the union's attempt to salvage its professional employees could delay the much-anticipated election. According to Mann, the Ninth Circuit's schedule has all briefs due in early August, well past the May 9 scheduled election. After that, it could take up to a year for a judge to issue a ruling.

NAAE also has filed a request for the FLRA to reconsider its decision. Jill Crumpacker, FLRA's executive director, confirmed the request but said she would not comment on a pending case.

The CBP election pits two allies in a pending lawsuit against attempted DHS labor relations reforms against each other, and puts thousands of dollars of union dues at stake. If NTEU loses the election, it will lose its major source of members in DHS.

Last week, NTEU General Counsel Gregory O'Duden argued the union case before an appeals court in the fight against DHS efforts to curtail employees' collective bargaining rights.