Update on Dueling DC Prosecutors. Who's Got the Best Grip on the Law Book?
By Bob Gilson
Monday, January 28, 2008
In the ongoing quarrel between the Federal Labor Relations Authority (FLRA) and the National Labor Relations Board (NLRB) over who understands bargaining unit law, there have been some developments.
On November 5, 2007, a FLRA Administrative Law Judge issued a decision granting the FLRA General Counsel's motion for summary judgment. This means that, and this is a real surprise, the judge agreed with the FLRA in its decision that a consolidation of eligible NLRB employees constituted an appropriate unit. The NLRB is arguing that the FLRA's decision ignores the statute creating the Board and inappropriately ruled that mixing employees in the office of General Counsel with other NLRB employees was okay.
Having worked around lawyers, I have heard them refer to a "Chinese Wall" that is created to keep one attorney from infecting another with information the second lawyer shouldn't have or know. If I got that wrong, an attorney will surely comment to correct me. According to NLRB, FLRA is putting a battering ram to its Chinese Wall. A nasty deed, indeed, in lawyer land.
In bargaining unit cases, the FLRA cannot be appealed into court. To get a day in court, the NLRB must refuse to implement the FLRA decision, draw an Unfair Labor Practice Charge, get prosecuted by the FLRA General Counsel, get found guilty by a FLRA Administrative Law Judge, get found guilty by the FLRA again, since it's unlikely to overrule itself and then go to court.
Of course, the wonderful thing in all this is that the FLRA General Counsel is prosecuting the NLRB General Counsel for allegedly committing a ULP. This is the very same guy who prosecutes companies who allegedly commit private sector ULPs. Yep, this is one Federal prosecutor prosecuting another Federal prosecutor. An interesting use of taxpayer dollars, don't you think? I wonder how many billable hours are involved.
On another note, I wonder if corporate labor lawyers, just for fun, are sending Colleen Duffy Kiko, FLRA's GC, encouraging telegrams, emails and other shows of support. Of course the day may come, when her term expires, that Ms. Kiko will return to the practice of labor law and appear before NLRB. What comes around may go around, as they say.
By the way, I wonder what might have happened had FLRA's GC declined to prosecute. Don't you?
The NLRB filed exceptions to the ALJ's decision with the FLRA on December 4, 2007. The FLRA General Counsel filed her opposition papers December 12. The matter is now up to FLRA's members for decision. There must be great suspense within the halls of FLRA over how it will rule, Ho Hum, Huh?
The real fun will come before the U.S. Court of Appeal, DC Circuit or the Supremes. I understand Judge Scalia really loves interagency legal disputes. Not!
As always, any opinion expressed here, is mine and mine alone. As is any mistake in reporting on lawyer-speak.
© 2008 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.
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