An earlier article, Did I Miss Something or Did FLRA Recently Declare NLRB Unable to Understand a Unit Issue?, it was reported that the Federal Labor Relations Authority (FLRA) ruled against the National Labor Relations Board (NLRB) on a bargaining unit consolidation issue involving the Board’s General Counsel employees and "Board-side" employees. The FLRA said it was okay to consolidate these separate units despite NLRB’s claim that its statute mandates "an independent General Counsel".
A Press Release dated June 28, 2007, reports that NLRB General Counsel Ronald Meisburg has directed General Counsel bargainers not to negotiate with representatives of the consolidated unit. According to the release, he hopes to draw an unfair labor practice that will get a decision reviewable in the courts.
The FLRA has been beat up before for trying to interpret other Agencies’ laws. Most notably in a case involving the Customs service in which the DC Circuit offered a number of unkind words about the FLRA overstepping the bounds of an "obscure administrative body". We pointed out that the Office of Government Ethics took on FLRA when it stuck its nose into the ethics business. See The Office of Government Ethics and the FLRA: How One Agency Got Another to Do the Right Thing. The FLRA doesn’t appear to get it but when you have taxpayer money to spend trying to pump up your mission, I guess you can afford to be smacked down and get up and try again.
Whether the Board will get what it wants is unclear and raises a number of interesting questions, at least to those of us who find interagency spats fun to watch. The problem for the Board is that it may be difficult to get the merits of its case before a judge. The FLRA is likely to claim in the DC district court that NLRB is in violation of an order that FLRA has the unappealable authority to decide, namely representational issues. What the FLRA will do if it’s being consistent with past behavior is seek an enforcement order from the district court arguing that the court may not address whether FLRA did the right thing or not, only whether or not NLRB is in compliance.
Federal district courts usually and wisely try to stay out of Federal labor law as appeals of FLRA go to circuit courts of appeal. Very rarely in the history of the Federal statute has an injunction, temporary restraining order or other district court action been either asked for or granted. It appears NLRB is in for the long run.
I understand Justice Scalia is less than thrilled to see Federal Agencies at war in the Supreme Court but FLRA has been wrong there as well. It tried to interpret the Privacy Act to allow release employee home addresses to the union. In that case, FLRA took on Justice and lost. I guess the President and Congress may want to be careful not to do anything FLRA doesn’t like or they’ll find out how many lawyers the Agency has.