The Jan. 17 decision from the Federal Labor Relations Authority's Washington, D.C., regional office ordered the certification of AFGE's opponent, the National Treasury Employees Union, as the winner of the election at DHS' Customs and Border Protection bureau. But AFGE General Counsel Mark Roth argued in a statement that the regional FLRA office "got wrong a number of issues dealing with the numerous advantages and institutional benefits CBP provided NTEU during the campaign."
AFGE will appeal the regional decision to the full FLRA. The union did not specify when it intended to file, but it has until March 19 to do so. Union officials said they were planning to take some time to look at the regional director's decision and would probably file closer to next month's deadline.
The need for the election arose when CBP sought to consolidate its non-Border Patrol employees -- represented by three different unions based on the agencies they had worked for prior to the March 2003 creation of DHS -- under a single labor group. AFGE filed its first appeal of the results shortly after NTEU won last June with 7,369 votes to AFGE's 3,426.
AFGE officials said one of the union's major concerns was the lack of fair and equal access to CBP employees prior to the election. NTEU represented more than double the number of CBP employees AFGE did going into the election.
"CBP effectively cut off AFGE's ability to communicate with CBP employees prior to the election, and we won't back down until this injustice is made right," Roth said.
AFGE argued that a "precedential issue" underlies the appeal, claiming that since the Sept. 11 attacks, access to high-security employees has been virtually blocked. This includes access to information as basic as names and work locations, the union said.
AFGE said a request for both unions to have the right to one mailing at their own cost to all eligible voters was denied.
But NTEU President Colleen Kelley said CBP provided a list of eligible employees to all unions representing the agency's employees in December 2004.
"The [FLRA] regional director's decision stated that CBP was not required to agree with AFGE's mailing proposal, and its refusal to do so did not affect the free choice of the voters or the outcome of the election," Kelley said. "CBP had a responsibility to be neutral, not to conduct our campaigns for us."
Delaying the certification of election results would prolong the period of uncertainty about representation and contract rights for newly hired employees at CBP, the union argued. NTEU also contended that the delay would prevent it from seeking contract benefits such as extra pay for bilingual immigration employees, agriculture specialists and other new members. The appeal also would prevent NTEU from moving forward and seeking contract improvements for all employees in key areas such as work assignments, bid and rotation, overtime and alternative work schedules. Kelley said she is "absolutely appalled" by AFGE's decision to appeal, stating that the action "has the impact of depriving thousands of CBP employees from having any union representation."
She added that NTEU representation of CBP employees takes on even greater importance given Wednesday's disclosure that Homeland Security employees ranked their agency at or near the bottom in four major categories identified in a recent Office of Personnel Management survey of job satisfaction and management challenges across the federal workforce.
Kelley wrote to AFGE President John Gage immediately following FLRA's decision last month, asking Gage to "act in the best interest of CBP employees and refrain from further delaying certification with a final appeal."
But Gage fired back Thursday, stating that "the decision to appeal has no bearing on the rights of CBP employees." Gage said that while awaiting the decision on the second appeal, AFGE will continue to aggressively represent its members within CBP.
FLRA would have to rule on any application by AFGE to review the regional office's decision no later than 60 days after receipt. The appeal could push certification of the election results as late as May.