NLRB Guilty of an Unfair Labor Practice Says FLRA: Eating Crow Ain't No Fun, So Will the Board Appeal?
In a case not yet published on its website, 63 FLRA No.41, FLRA found the NLRB guilty of an unfair labor practice and ordered it to:
1. Cease and desist from:
(a) Refusing to bargain with the National Labor Relations Board Union (Union) as the exclusive representative of the consolidated bargaining unit certified on June 8, 2007.
(b) Otherwise refusing to accord the Union its statutory status as the exclusive representative of the consolidated bargaining unit certified on June 8, 2007.
(c) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Recognize the Union as the exclusive representative for the following consolidated bargaining unit which was certified on June 8, 2007, and accord the Union its statutory status as the exclusive bargaining representative of the employees in the unit:
All nonprofessional employees of the National Labor Relations Board and Office of the General Counsel and all professional employees of the General Counsel in the Regional, Subregional and Resident Offices, excluding all other professional employees, management officials, supervisors and employees described in § 7112 (b) (2), (3), (4), (6) and (7) of the Statute.
(b) Upon request, negotiate in good faith with the Union over conditions of employment of its employees in the consolidated unit certified on June 8, 2007.
(c) Accord the Union and the employees in the consolidated bargaining unit certified on June 8, 2007, all rights and entitlements provided in the Statute.
(d) Post at all of its facilities where employees in the consolidated bargaining unit certified on June 8, 2007, are located, copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms they shall be signed by the Respondent’s General Counsel, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(e) Pursuant to § 2423.41(e) of the Authority’s Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, CA 94103-1791, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
What’s This All About?
To recap, in December 2008, the FLRA ruled that the Board’s unionized workers may consolidate into a single bargaining unit despite the Board’s claim that doing so will violate its enabling legislation. This case is called NLRB 2. It involved a request from the Board for the FLRA to reconsider its decision in a 2007 case referred to as NLRB 1 which ordered the Board to bargain with the union representing the consolidated unit. Are you with me so far?
So What’s Next?
The National Labor Relations Board General Counsel serves a term of office unlike the Federal Labor Relations Authority’s (FLRA) General Counsel who serves at the President’s pleasure. So when the FLRA accuses the Board of an Unfair Labor Practice (ULP), the big P politics of what might be done may differ from a situation where both might have to pleasure the administration.
I was advised by the FLRA that it’s unaware of any move by NLRB to take them to court over this. That may be because it’s up to the union to file a request that FLRA enforce the ULP order and only a few weeks have gone by since the decision. Also FLRA currently has no General Counsel and that may be hindering the effort. In this mesmerizing tangle of wonderful Washington lawyer stuff, I’m not sure whether the union goes to the GC or the FLRA’s Solicitor to ask for enforcement. But I’m sure a commentor will set me straight. By the way, these things don’t happen every day and this may even be a first of a kind.
The NLRB bettered the FLRA in the last court case I could find between the two. It involved the negotiability of a union proposal and the court didn’t think much of FLRA’s case.
Your Tax Dollars at Work
There’s an argument to be made, I guess, that government lawyers are a fixed cost and we pay them whether they work or not. Under that theory, this one may go to the Supreme Court just so they can appear busy when the auditors come around. Another issue (and there are many) I don’t know, is whether either or both Agencies have something called independent litigation authority (ILA). This means they can take cases into the courts without intervention by the Department of Justice (DOJ). If you’ve got ILA, DOJ can’t tell you how to run your case.
Maybe the most interesting side of this story involves the many company or union lawyers who’ve been on the other side of a ULP with the NLRB. If the President wants to balance the budget, perhaps he should consider broadcasting any court proceedings, like a prize fight, in arenas around the country and charge lawyers an hourly fee to watch the case play out.
I have heard that Justice Scalia finds interagency legal dueling most abhorrent. Of course, we non-attorneys may never find out since the K Street Lawyers will likely hog all the seats at any Supreme Court Q&A.
On a parting note, you couldn’t make this stuff up. I’m sure that the fledgling FLRA, which hired as many Board people in 1979 and 80 as it could lure away to get started, never envisioned any situation in which it might charge and find the Board guilty of a ULP and the Board, that veteran of many legal battles since 1935, never thought the Johnny Come Lately FLRA would be trying to teach it to suck eggs. Stay tuned, it ain’t over yet.
As always, opinions expressed are mine alone.