A Quiet Trump Administration Rule Change Could Allow a Federal Union-Busting Spree

Heather Gies

J. David Cox Sr., president of the American Federation of Government Employees, holds up his fist as he speaks to federal workers before their 35 minute silent protest in the Hart Senate Office Building to call on law makers and President Trump to keep the government open on Wednesday, Feb. 13, 2019. (Photo By Bill Clark/CQ Roll Call)

The Trump admin­is­tra­tion has pro­posed a change in rules gov­ern­ing union mem­ber­ship for fed­er­al gov­ern­ment work­ers that could embold­en fed­er­al agen­cies to dis­cour­age staff from join­ing or remain­ing in their union.

The pro­posed rule, pub­lished in the Fed­er­al Reg­is­ter on Fri­day, would enable fed­er­al work­ers to drop union mem­ber­ship — and opt out of pay­ing mem­ber­ship dues — at any point after their first year of mem­ber­ship. A rolling opt-out rule would mark a break from cur­rent prac­tice, in which work­ers can revoke their mem­ber­ship at year­ly inter­vals upon their anniver­sary of joining.

Kate Bron­fen­bren­ner, senior lec­tur­er and direc­tor of labor edu­ca­tion research at Cor­nell University’s School of Indus­tri­al and Labor Rela­tions, tells In These Times that beyond a mere admin­is­tra­tive tweak allow­ing work­ers to opt out of mem­ber­ship when­ev­er they please, the pol­i­cy opens the door for employ­ers to bul­ly work­ers out of stay­ing in their union, or join­ing in the first place. She said the issue of dues deduc­tion could be a pres­sure point for employ­ers to intim­i­date and coerce work­ers” out of union activity.

Employ­ers, in this con­text, are the Trump appointees head­ing dozens of fed­er­al agen­cies that togeth­er employ mil­lions of work­ers, includ­ing 1.1 mil­lion employ­ees rep­re­sent­ed by unions. These agen­cies include the Depart­ments of Veteran’s Affairs, Defense, and Agri­cul­ture, the Inter­nal Rev­enue Ser­vice, the Food and Drug Admin­is­tra­tion, the Nation­al Park Ser­vice, the Envi­ron­men­tal Pro­tec­tion Agency, and many more.

Under the cur­rent admin­is­tra­tion, we’ve seen very intense anti-union activ­i­ty,” Bron­fen­bren­ner says. This is not a law for employ­ees. This is a law to allow employ­ers to push work­ers out of the union.”

Nicole Can­tel­lo, pres­i­dent of Amer­i­can Fed­er­a­tion of Gov­ern­ment Employ­ees (AFGE) Local 704 rep­re­sent­ing 1,000 Envi­ron­men­tal Pro­tec­tion Agency (EPA) work­ers in Illi­nois, Indi­ana, Michi­gan, Ohio, Wis­con­sin and Min­neso­ta, tells In These Times such rules inter­fere in the union-work­er rela­tion­ship by elim­i­nat­ing the oppor­tu­ni­ty for mean­ing­ful con­ver­sa­tions about why a mem­ber might con­sid­er leav­ing the union, or what she calls a cool­ing off period.”

We’re already strug­gling under a sim­i­lar rule,” Can­tel­lo said, refer­ring to direc­tives in a con­tract the EPA imposed” on near­ly 9,000 EPA employ­ees. We feel it is equiv­a­lent to union busting.”

The lat­est sal­vo in an ongo­ing attack

J. David Cox, nation­al pres­i­dent of AFGE rep­re­sent­ing 700,000 fed­er­al and D.C. gov­ern­ment work­ers, said in a state­ment that the Trump administration’s rule change request rep­re­sents part of an all-out assault on fed­er­al employ­ees’ col­lec­tive bar­gain­ing rights.”

They are throw­ing out our con­tracts, enforc­ing ille­gal exec­u­tive orders, and now try­ing to make it hard­er for work­ers to join and stay in the union,” Cox said. Their ulti­mate goal is to destroy fed­er­al sec­tor unions, and we will do every­thing in our abil­i­ty to pre­vent that from happening.”

The pro­posed change comes amid a series of moves aimed at hol­low­ing out fed­er­al unions. Those efforts received a boost this week when the U.S. Court of Appeals gave the green light to Trump’s exec­u­tive orders lim­it­ing col­lec­tive bar­gain­ing and the amount of time fed­er­al work­ers can spend on union activ­i­ties. The Nation­al Labor Rela­tions Board also just made it eas­i­er for employ­ers in both the pub­lic and pri­vate sec­tor to elim­i­nate unions.

The pro­posed mem­ber­ship with­draw­al change also fol­lows on the heels of Janus v. AFSCME, a 2018 Supreme Court deci­sion that barred pub­lic sec­tor unions from col­lect­ing fair share dues” from work­ers who are rep­re­sent­ed by the union, but who opt out of full mem­ber­ship. Janus, the result of a suit bankrolled by right-wing think tanks, brought the rest of the pub­lic sec­tor in line with the sta­tus quo for fed­er­al work­ers’ unions, where union mem­ber­ship and dues pay­ment was already vol­un­tary. By invok­ing Janus, which argued that fair share dues infringe on work­ers’ free speech rights, the Office of Per­son­nel Management’s (OPM) new mem­ber­ship revo­ca­tion pro­pos­al lays bare its anti-union sentiment.

Con­sis­tent with Janus,” the pro­posed rule states, upon receiv­ing an employee’s request to revoke a pre­vi­ous­ly autho­rized union dues assign­ment, an agency should process the request as soon as admin­is­tra­tive­ly fea­si­ble, if at least one year has passed since the employ­ee ini­tial­ly autho­rized union-dues assign­ment from the employee’s pay.”

Bor­row­ing Cor­po­rate America’s playbook

The dri­ve to wipe out fed­er­al unions isn’t new. They have want­ed to get rid of AFGE and oth­er fed­er­al unions for a long time,” Bron­fen­bren­ner said, point­ing to the his­to­ry of Rea­gan era union-bust­ing and pri­va­ti­za­tion under both Bush admin­is­tra­tions. Now, increased orga­niz­ing in fed­er­al unions in recent years — includ­ing a his­toric 2011 AFGE win secur­ing a bar­gain­ing unit of 44,000 Trans­porta­tion Secu­ri­ty Offi­cers as well as sup­port among fed­er­al work­ers for the $15 min­i­mum wage cam­paign — could fur­ther unset­tle the anti-union boss­es at the helm under Trump.

This admin­is­tra­tion is tied with Cor­po­rate Amer­i­ca,” Bron­fen­bren­ner adds. They are going to act in the fed­er­al sec­tor the way they’ve act­ed in the pri­vate sector.”

In research pub­lished in a 2009 brief­ing paper, Bron­fen­bren­ner found that the over­whelm­ing major­i­ty” of pri­vate sec­tor employ­ers in the Unit­ed States are will­ing to use a broad arse­nal of legal and ille­gal tac­tics to inter­fere with the rights of work­ers,” includ­ing a com­bi­na­tion of threats, inter­ro­ga­tion, sur­veil­lance, and harass­ment” to under­mine union elec­tion processes.

Bron­fen­bren­ner tells In These Times that anti-union maneu­vers, from Janus to the rule change on fed­er­al union mem­ber­ship revo­ca­tion, intro­duce a sim­i­lar play­book to the pub­lic sec­tor. Togeth­er, she believes these actions are about giv­ing employ­ers more pow­er to bust unions.”

Con­ser­v­a­tive groups such as the State Pol­i­cy Net­work, which helped fund Janus, already have aggres­sive­ly tar­get­ed pub­lic sec­tor work­ers urg­ing them to opt out of their unions, but those cam­paigns have proved far less effec­tive at ush­er­ing in a fatal blow to unions than many anticipated. 

The OPM, the fed­er­al agency that man­ages the gov­ern­ment work­force and human resources mat­ters, sub­mit­ted the pro­posed rule to the Fed­er­al Labor Rela­tions Author­i­ty, which will accept pub­lic com­ments on the pol­i­cy change until August 12.

Bron­fen­bren­ner says the new guide­lines would ulti­mate­ly enable employ­ers to inter­fere with the day-to-day abil­i­ty of work­ers to engage with the union with­out fear of intim­i­da­tion, coer­cion, and threats.”

The way the law has worked, once you are part of the union, it has been an unfair labor prac­tice [and] a vio­la­tion of labor law for the employ­er to oppose your par­tic­i­pa­tion in the union,” she said. But with Janus, and now this, the employ­er has the abil­i­ty to inter­fere with your mem­ber­ship in the union, and that goes against the way the law has been inter­pret­ed for years.”

Heather Gies is a free­lance jour­nal­ist who has writ­ten on human rights, social move­ments and envi­ron­men­tal issues for Al Jazeera, The Guardian, In These Times and Nation­al Geo­graph­ic. Fol­low her on twit­ter @HeatherGies.
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