A regulator whose former law firm represented the American Federation of Government Employees (AFGE) has refused to recuse himself from a case involving the public sector union.
The Federal Labor Relations Authority (FLRA), a labor regulator for government workers, ruled that assistant general counsel Kurt Rumsfeld’s relationship to AFGE, which represents 650,000 federal workers, did not compromise his ability to assess a case that threatens the union’s control of a NASA facility.
An internal review found that "Mr. Rumsfeld’s participation in the filing of an amicus brief did not create an impermissible conflict of interest," despite the fact that his previous employer, Woodley & McGillivary, represented the union at the heart of the case.
Bruce Cameron—an attorney representing employee Ron Walsh, who is seeking to decertify the union—asked the agency to review Rumsfeld’s impartiality after discovering that the law firm had represented the national AFGE. Cameron argued the relationship would bias the regulator toward the union, rather than Walsh, who has acquired enough employee signatures to force a decertification vote.
The agency argued that because the case involved AFGE Local 1923, rather than the national that had paid thousands of dollars to Rumsfeld’s former employer, there was no conflict of interest.
"With regard to your suggestion that Woodley & McGillivary’s representation of an AFGE affiliated local union creates a conflict, courts have repeatedly recognized the fact that subordinate affiliate union bodies are entities separate and distinct from the parent national or international union," the agency said in a letter to Cameron.
Cameron filed the complaint with the agency after discovering that Rumsfeld’s former board had ties to the union as he was evaluating whether the local union obstructed an employee’s petition to remove the union from the Wallops Island NASA facility. A three-member FLRA board requested legal briefs from the union and employee as it decides whether individuals are subject to labor laws that prevent rival unions from demanding elections. The board allowed the FLRA’s general counsel’s office to weigh in on the case.
"The representative of the general counsel’s office could file a brief supporting either side," Cameron said. "He supported the union and also had a 17-year partnership in a law firm that represents the union."
Rumsfeld issued a brief that appears to favor the union. His filing highlighted several cases in which the FLRA applied its timeliness standard to individuals, despite the fact that the law itself does not mention individuals.
His brief stated that a decision in favor of the NASA employee over the union "would undermine a fundamental objective of the statute—to promote stability and repose in established collective bargaining relationships—by allowing continuous and disruptive challenges to an exclusive representative’s status."
The union made a similar point in its own legal brief, arguing that Walsh threatened to create "chaos" if the FLRA allowed a secret ballot election on union representation.
Walsh, a 10-year NASA employee, said that the process was "lopsided and unbalanced in favor of the union instead of the employee." The FLRA, he said, "seems very pro-union and very anti-employee."
The FLRA has made clear that they are sticking by the former union attorney’s legal brief, no matter Cameron’s objections.
"We consider this matter closed and will be taking no further action on your inquiry," the agency said in its letter.
The FLRA is not obligated to follow Rumsfeld’s recommendations. The agency is expected to decide on the matter in the next several weeks.