LOOK WHO IS SUDDENLY CONCERNED ABOUT AFGE’S ICE EMPLOYEES

After a career of doing her best to keep a knee on the necks of employees and their unions, suddenly FLRA’s Colleen Kiko-Duffy, a Trump disciple, is all torn up inside over how some employees and their union are being treated. This is the same person who spent much of her time late in the last decade overturning just about any arbitration decision that an employee or union won. When she had a few spare moments from that vendetta, she plundered through several of the most established, decades old labor law precedents to reduce or destroy employee and union rights. Deep down she is as honestly concerned about employees and unions as Putin is about Ukraine’s well-being. Here is why she was faking it in a recent decision.

The case involved an effort by an unnamed employee in the recently deceased Immigration and Customs Enforcement (ICE) bargaining unit. S/he was trying to overturn an FLRA decision permitting AFGE national to renounce its right to represent ICE employees.  Oh, boo-hoo K-D wailed in her decision over AFGE dumping ICE employees, “… who ‘preserve national security and public safety’ by enforcing immigration laws and combating cross-border crime – without union representation or a collective‑bargaining agreement.”  The ICE employee wanted to somehow change AFGE’s decision, but his petition was rejected by the FLRA majority, leaving the 5,900 people in that defunct bargaining unit still without union representation.

Kiko-Duffy said nothing about how the ICE Council tormented the national union for years opposing its endorsement of presidential nominees and other political positions, contributing to tragic results for the entire labor movement.  Nor did she mention the ICE Council harassing national AFGE by asking the feds to investigate AFGE for financial crimes. On top of that there was no recognition that given AFGE national holds the exclusive recognition certificate for the ICE unit, it, not the ICE Council, was responsible for any illegal or grossly foolish things the increasingly out of control Council did. If a bargaining unit was run by racists, mysogynists,  advocators of violence, or even management flunkies, should a union be forced to remain associated with that unit?  (That said, we are not suggesting the ICE Council is any of that. At worst, it is merely a victim of allowing itself to get sucked into the fringes of the culture wars.)  Finally, K-D glossed over the fact that the ICE Council was a legal fiction. It is something AFGE alone created to give local ICE leaders more influence over the representation of ICE employees. The Council was not created by FLRA, certified by FLRA, nor recognized by FLRA regulations.

Beyond that, there is the old expression about poking a bear.  The ICE Council leaders, relying on their own labor law expertise, figured they could endlessly undermine AFGE’s efforts to help all its other 600,000+ members without any consequences. The Council leaders gambled the collective bargaining rights of their members and lost those members the right to (1) grieve and arbitrate grievances, (2) stop management working condition changes by demanding bargaining, (3) get information from management, (4) have representatives in disciplinary investigations, etc.  Yes, that is a huge loss, but those same Council leaders could have responded to the initial AFGE petition to renounce the ICE unit by immediately entering reconciliation and settlement talks with AFGE. Afterall, it did not require even a Trump University law degree to know that AFGE held all the cards in that fight. Labor leaders need to be big boys and girls, responsible for the consequences of their actions.

No one should think for a moment there is any legal validity to what Kiko-Duffy wanted to do here.  She wanted to insert FLRA into the internal business of a union so that when her people once again control FLRA they can launch their political vendetta against unions not just via control over the labor-management relationship, but also from inside union conventions, board meetings, and leadership. A bargaining unit can sever relationships with a parent unit with a single Montrose vote where the parent union has no say.  So, why shouldn’t a national union have the right to move just as swiftly to sever itself from an incompatible unit?

Don’t get us wrong, we wish AFGE and the ICE employees had been able to avoid this mess. We are worried about what will happen to ICE employees now, especially those who might have made management’s life miserable over the last few years. Those poor souls are sitting ducks. Their best bet is to make up with AFGE or seek a union independent of the AFL-CIO and similar federations opposed to the harsh and often immoral treatment of immigrants. There are such unions, but they would likely require the ICE Council leaders give up a lot of the independence that AFGE trusted them with in return for some excellent representation. Here’s hoping the ICE Council leaders find someone who knows the ins and outs of putting together such deals.

See DHS/ICE and AFGE, 73 FLRA 299 (2022).