Features

David Borer – AFGE

Working overtime for federal employees

The fate and fortunes of federal and D.C. workers tend to rise and fall with the changing political tides. When the Trump administration swept into the White House in 2017, leaders of the American Federation of Government Employees knew the union was in for a rough ride. As general counsel to the largest federal sector union, David Borer and his office fought to ensure that federal workers and their union outlasted the former president’s administration in an existential battle over three executive orders.

One Trump order short-circuited the right of federal employees to bargain collectively. Another reduced the union’s ability to represent employees filing grievances. The third restricted union federal workers’ due process rights.

“Federal workers were suddenly hamstrung: Their rights were undercut, and so was the union’s ability to represent them,” Borer says.

David Borer | General Counsel | AFGE

David Borer | General Counsel | AFGE | Photo credit: Travis Reuther

But not for long. With Borer overseeing the counterattack, and his deputy, Andres Grajales, and attorney Matthew Milledge chairing the case, AFGE and other unions sued in U.S. District Court to stop the orders. In August 2018, they garnered a sweeping injunction against the executive orders from then-Judge and now Supreme Court Justice Ketanji Brown Jackson. While acknowledging that a president has the authority to issue executive orders in the realm of federal labor relations, Jackson said Trump’s actions went too far against the rights of due process and collective bargaining.

One year later, the government got the ruling reversed by a three-member panel of the U.S. Court of Appeals. Borer’s office bought the union precious time by petitioning for a rehearing before the full court, but it was denied in late 2019. However, the most severe impact had been delayed and became moot in January 2021 when new President Joe Biden canceled the Trump orders and restored the union rights of federal workers.

“Biden always likes to say he’s the most union-friendly president in history, and he certainly took quick action to undo these Trump orders,” Borer says. “It really is about the very existence of unions in the federal sector. Biden said unions have an appropriate role here, and we will ensure we uphold it.”

Defense can’t rest

Nothing really seems settled regarding federal unions and labor law, Borer tells Vanguard in October from his Maryland home. So much seems subjective, depending on who’s in power. And while the issue over Trump’s executive orders was cleared up with the change in administration, other matters can take much longer to resolve.

Such was the case at the U.S. Department of Veterans Affairs, where around 120,000 AFGE members and the brass had been embroiled in a dispute since 2004—six years before Borer began his tenure at AFGE. Many eligible rank-and-file VA workers hadn’t received a Saturday pay differential. An arbitrator ruled in their favor twice, and the Federal Labor Relations Authority overruled the agency’s objections to the arbitration decisions. However, the VA still refused to comply. The case went to mediation only after AFGE filed an unfair labor practice charge in 2012. Even then, it took four more years for the VA to agree to a settlement that included over $200 million in back wages.

Lest any of the 300,000 AFGE members wonder what their dues are going toward, Borer cites this case as a prime example.

“This is a direct return on the dues they pay to support our union,” he says. “The average employee could never have achieved this result. They wouldn’t have had the resources to hire a private attorney for over 10 years of litigation. AFGE attorneys did that. It’s a great feeling to win them a life-changing amount of money they earned.”

Then there was AFGE’s successful fight for the technicians and mechanics who keep military craft rolling and flying for the Ohio National Guard. When the adjutant general canceled their contract and ended negotiation and dues checkoff, AFGE filed an unfair labor practice charge with the FLRA, which ruled in its favor. Even after an appeals court ruled in AFGE’s favor, the National Guard took it to the highest level—and lost with Justice Clarence Thomas writing the 7-2 majority opinion for Ohio Adjutant General’s Department v. Federal Labor Relations Authority, 598 U.S.

David Borer | General Counsel | AFGE

Photo Credit: Travis Reuther

“A rare win for labor in this Supreme Court, thanks again to the excellent work of AFGE attorneys Grajales and Milledge,” Borer says. “The law was so blatantly violated that even this court—and Justice Thomas—ruled the union was right.”

The case, Borer goes on to say, turned on a technical issue over whether the FLRA had jurisdiction over a state’s National Guard. But while the National Guard is a state entity, it is ultimately under the direction of the Pentagon, and its civilian employees do indeed work for the feds and thus enjoy FLRA protections.

Living the labor life

As for what’s next on Borer’s agenda, he says that while issues arise daily, there’s nothing so dramatic as the aforementioned cases on the immediate horizon. But having devoted his career to labor law and seeing the pendulum swing, Borer says he takes nothing for granted.

Time was when he envisioned himself aiding the cause as a politician, the Ohio-born Borer having been a poli-sci major at the University of Toledo during the 1970s. Then at Ohio State University Moritz College of Law, Professor Lee Modjeska helped him realize he could put his progressive values to work as a labor attorney.

Upon earning his law degree in 1981, Borer became a staff attorney and regional director with the Ohio Civil Service Employees Association for three years. Since then, his career has included positions with the Communications Workers of America, Massachusetts Teachers Association, a labor consulting service and a 22-year stretch as general counsel for the Association of Flight Attendants.

“If you believe in fairness and equity for working people, the labor movement is the place to be,” he says.

But effective as Borer has been, some—including The New York Times —would say that he’s not the most influential labor activist in his family. He won’t argue otherwise, as his wife, Sara Nelson, will soon celebrate her 10th anniversary as the Association of Flight Attendants international president. As the gracious but hardnosed head of the union representing 50,000 flight attendants at 20 airlines, it was her call for a general strike that’s widely credited for hastening the end of the federal government’s five-week shutdown in January 2019.

The couple met while Borer was that union’s general counsel, and kindred souls they would seem to be. They spent her last birthday in Rochester, New York, counseling young employees at Amazon, Tesla and Starbucks on the fine points of unionizing.

And while Borer has been in this game for over 40 years, he’s not contemplating retirement.

“We have an eighth-grade son we’ve got to put through college,” he says with a laugh. “I’ve got a few more miles in me. Besides, this is my life and our life as a family.”

View this feature in the Vanguard Winter I 2024 Edition here.

Published on: December 8, 2023

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