In an interesting and historic battle, the General Counsel of the National Labor Relations Board was vindicated by the D.C. Circuit Court of Appeals in refusing to recognize a union representing an Agency-wide bargaining unit of Board staff. The Court’s decision (NLRB v. FLRA, DC Circuit, No. No. 09-1119, July 23, 2010) does a much better job summarizing the case than I could:
The National Labor Relations Board petitions for review of an order of the Federal Labor Relations Authority holding the Board engaged in an unfair labor practice, in violation of the Federal Services Labor-Management Relations Statute, 5 U.S.C. § 7116(a)(5). The Authority cross-petitions for enforcement of its order. The Authority held the Board unlawfully refused to negotiate with the intervenor, the National Labor Relations Board Union, which the Authority had certified as the exclusive representative of a bargaining unit that included employees who report to the Board and employees who report to the General Counsel of the Board. The Board argues its refusal to bargain was not an unfair labor practice because the inclusion of Board-side and GC-side employees in a single bargaining unit conflicts with the separation of authority mandated by § 3(d) of its charter, the National Labor Relations Act, 29 U.S.C. § 153(d), by requiring the General Counsel to bargain jointly with the Board over his employees‘ conditions of employment. We hold the decision of the Authority conflicts with the Act, and accordingly grant the Board‘s petition for review and deny the Authority‘s cross-petition for enforcement of its order.
Key to the case is the NLRB’s claim is whether the National Labor Relations Act (1935) requires a separation between the management of the General Counsel’s function and the Board’s function. Lawyers call such an arrangement a Chinese Wall and it’s designed to protect from conflicts of interest. The Court clearly identified a key issue that FLRA, in its history, has repeatedly denied.
The issue is whether an Agency is entitled deference in the interpretation of its own law. One would think that the Supreme Court’s slapping down of the FLRA on its attempt to interpret the Privacy Act and the Customs Service and Office of Government Ethics cases on the same issue would have taught the Authority a lesson but it appears not. (See The Office of Government Ethics and the FLRA: How One Agency Got Another to Do the Right Thing)
In what can only be called a lecture to an errant child, the Court told the FLRA:
The Authority can “assume” but it cannot provide any assurance the Board and the General Counsel will be able to treat each labor issue as either a matter entirely of Board-side or of GC-side concern or agree upon issues of common concern; nor is there good reason to assume the history of coordination between the two will survive consolidation of their employees into a single bargaining unit. Good fences make good neighbors, as Robert Frost observed, but the Authority proposes to take down the fence. Neither we nor the Authority can blithely disregard the potential for discord in what have hitherto been viable collective bargaining relationships.
The Court also dismissed the Authority’s claim that a newer law by implication trumps an older one. It cited a Supreme Court case as holding “A new statute will not be read as wholly or even partially amending a prior one unless there exists a ‘positive repugnancy’ between the provisions of the new and those of the old that cannot be reconciled.”
In what may have been the unkindest cut of all, the Court suggested that the FLRA should have read its own case law in working this issue. The FLRA had found that a consolidation of National Guard units was inappropriate because each state Adjutant General was independent of the other in a similar set of theories to this case. But FLRA, perhaps lacking a search engine at the time, apparently lost the decision in its files.
I emailed the FLRA asking three questions: Is it likely FLRA will seek Supreme Court review? If not, will FLRA publish the case in its closed court litigation? Does the FLRA, the General Counsel or the Solicitor have any comment on the case? The reply I received stated, “The Chairman and Members are reviewing the decision to determine appropriate next steps.”
Going to the Supreme Court, after the drubbing received from the Circuit, would take the exact amount of hubris I have been accusing them of possessing on issues such as these.
Ronald Meisburg was the NLRB’s General Counsel during this case and is now in private practice. He represented the Board before the Court. When asked to comment on the decision, he said, “I am pleased with the court’s decision. Complete separation of the NLRB’s prosecutorial and adjudicative functions, including the supervision of personnel who perform those functions, is a key factor in the fair administration of the Act. I have the greatest respect for the NLRB and all those who serve there, and I hope that the resolution of this issue will lead to positive developments for all parties concerned.”
In its early years, the FLRA was dominated by NLRB staff that crossed over to take regional director and other positions and I remember being told by such folks that Federal sector labor relations was a pale reflection of the private sector. Who knows, maybe the Authority decided it was time to teach its older, smugger brother that it was now a force to be reckoned with. In any event, the older brother appears to have taught the younger one a lesson instead.
Or maybe, as the English might say, the FLRA was trying to teach its grandmother to suck eggs.
As always, my opinions are my own.
