The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 21, 2010 Decided July 23, 2010
No. 09-1119
NATIONAL LABOR RELATIONS BOARD,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
NATIONAL LABOR RELATIONS BOARD UNION,
INTERVENOR
Consolidated with 09-1148
On Petition for Review and Cross-Application for
Enforcement
of an Order of the Federal Labor Relations Authority
Howard S. Scher, Attorney, U.S. Department of Justice,
argued the cause for petitioner. With him on the briefs were
William G. Kanter, Attorney, and Ronald E. Meisburg,
General Counsel, National Labor Relations Board.
Rosa M. Koppel, Solicitor, Federal Labor Relations
Authority, argued the cause for respondent. With her on the
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brief were William R. Tobey, Deputy Solicitor, and James F.
Blandford, Attorney.
Before: GINSBURG, GARLAND and BROWN, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: 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.
I. Background
The agency responsible for overseeing labor relations in
the private sector is at loggerheads with the agency
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responsible for overseeing labor relations in the federal sector
over — what else? — labor relations. Their disagreement
arises from the interaction between the laws they respectively
administer, the Act and the Statute. The Statute requires
federal agencies to bargain with the representative of their
employees in an ―appropriate unit‖ for that purpose.
Meanwhile, the Act makes the General Counsel independent
of the Board. We explain each regime to the extent relevant
before turning to the Authority‘s treatment of the interaction
between the two laws in this case.
A. The Statute
The Statute provides a federal agency must ―negotiate in
good faith‖ with its employees‘ representative over the
employees‘ ―conditions of employment.‖ 5 U.S.C.
§§ 7102(2), 7116(a)(5). Should the employing agency and its
employees‘ representative fail to reach an agreement, the
Federal Service Impasses Panel may prescribe one. See Nat’l
Air Traffic Controllers Ass’n v. Fed. Serv. Impasses Panel,
606 F.3d 780, 784 (D.C. Cir. 2010) (―the FSIP ... may
ultimately ‗take whatever action is necessary and not
inconsistent with the Statute to resolve the impasse,‘
including binding arbitration‖ (quoting 5 U.S.C.
§ 7119(c)(5)(B)(iii)).
Collective bargaining presupposes that certain employees
are entitled to be represented as a group, or a ―bargaining
unit‖ in the jargon of labor law, which raises the question who
is to be in the unit. Under the Statute, it falls to the Authority
to determine whether ―the appropriate unit [with which an
agency employer must negotiate] should be established on an
agency, plant, installation, functional, or other basis.‖ 5
U.S.C. § 7112. Once the Authority has delineated an
appropriate unit, the employees in that unit may elect a
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representative to negotiate on their behalf. 5 U.S.C.
§ 7111(a).
The Authority has recognized that its unit determination
can intersect lines of supervisory authority within the
employer agency. Just as all the employees in a bargaining
unit must be represented by a single, exclusive representative
for the purpose of collective bargaining, several otherwise
distinct components of an agency must bargain as one if the
bargaining unit includes employees from their respective
domains. The Authority considers this effect upon the
distribution of authority within the employing agency as one
of several factors in determining whether an ―[appropriate
unit] determination will ensure a clear and identifiable
community of interest among the employees,‖ U.S. Dep’t of
Justice, 17 F.L.R.A. 58, 62 (1985) (―the locus and scope of
personnel and labor relations authority and functions‖ is one
of the ―[p]rimary ... factors‖ considered ―in determining
whether there [is] a community of interest‖), itself one of
three statutory criteria for the appropriateness of a bargaining
unit, 5 U.S.C. § 7112(a) (―The Authority ... shall determine
any unit to be an appropriate unit only if the determination
will ensure [1] a clear and identifiable community of interest
among the employees in the unit and [2] will promote
effective dealings with, and [3] efficiency of the operations of
the agency involved‖).
The Authority considers the effect of a proposed unit
upon both day-to-day personnel management within the
employing agency, see U.S. Dep’t of the Treasury, Internal
Revenue Serv., 56 F.L.R.A. 486, *8 (2000) (considering
―existing personnel and labor relations policies and practices
and chains of authority‖ established by agency practice), and
formal lines of authority within that agency as created by
statute, see U.S. Dep’t of Defense, Nat’l Guard Bureau, 55
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F.L.R.A. 657, 661 (1999) (holding nationwide bargaining unit
not appropriate in part because, ―[u]nder [law governing
National Guard], general authority over employment is vested
in state officials‖). The latter consideration is meant to ensure
the Statute is not applied in such a way as to conflict with a
congressional delegation of authority to a particular post or
position within an agency. Id.
B. The Act
The Act divides responsibility over private-sector labor
relations between the National Labor Relations Board and the
General Counsel of the Board. The General Counsel has
―final authority, on behalf of the Board, in respect of the
[investigation and prosecution of unfair labor practice
complaints],‖ 29 U.S.C. § 153(d), whereas the Board
adjudicates those complaints. This bifurcated structure
reflects the intent of the Congress ―to differentiate between
the General Counsel‘s and the Board‘s ‗final authority‘ along
a prosecutorial versus adjudicative line.‖ NLRB v. United
Food & Commercial Workers Union, Local 23, 484 U.S. 112,
124 (1987).
In addition to mandating a separation of functions
between the Board and the General Counsel, the Act
specifically mandates a separation of authority over agency
employees. Under the Act, the General Counsel
shall exercise general supervision over all attorneys
employed by the Board (other than administrative law
judges and legal assistants to Board members) and
over the officers and employees in the regional
offices.
29 U.S.C. § 153(d).
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C. Labor Relations at the Board
The employees of the Board have engaged in collective
bargaining since before the enactment of the Statute and been
subdivided for that purpose into six bargaining units
separating employees based at headquarters from employees
in the regional offices, professional employees from non-
professional employees, and Board-side employees from GC-
side employees. In 2005 the Union, which was already the
exclusive bargaining representative of each separate unit,
petitioned the Authority to consolidate four of the six units
into one bargaining unit. As reflected in the following table,
the consolidated unit would include all employees of the
Board except professional employees based at headquarters.
Employees Before After
Board-side Separate
Headquarters-based Bargaining
Non-professional Unit
GC-side Separate
Headquarters-based Bargaining
Non-professional Unit
Single Bargaining
GC-side Separate Unit
Regional Bargaining
Non-professional Unit
GC-side Separate
Regional Bargaining
Professional Unit
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In 2006 a Regional Director of the Authority granted the
Union‘s request over the objection of the Board, which argued
consolidation would undermine the independent supervisory
authority granted the General Counsel in § 3(d) by requiring
the General Counsel to bargain jointly with the Board over his
employees‘ conditions of employment. The Board applied to
the Authority for review of the Regional Director‘s decision,
and the Authority granted that application, noting the
―absence of precedent‖ about ―whether the statutory authority
provided to the Agency‘s GC in § 3(d) precludes GC and
Board employees from being included in the same bargaining
unit.‖ In 2007 the Authority found no conflict and affirmed
the Regional Director‘s decision to consolidate the units,
holding, inter alia, the history of cooperation between the
Board and the General Counsel in labor relations undercut the
Board‘s argument that § 3(d) precluded consolidation. Nat’l
Labor Relations Bd., 62 F.L.R.A. 25 (2007). Barred under 5
U.S.C. § 7123(a)(2) from seeking judicial review of the
Authority‘s unit determination, the Board followed the only
path open to it, as discussed in Ass’n of Civilian Technicians
v. FLRA, 283 F.3d 339, 342 (D.C. Cir. 2002), ―refusing to
bargain, drawing an unfair labor practice charge, and
appealing that charge to the Authority and then to a court of
appeals.‖ Id. at 343.
II. Analysis
We review the Authority‘s decision holding the Board
engaged in an unfair labor practice only ―to determine
whether it is ‗arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.‘‖ Nat’l Ass’n of Gov’t
Employees v. FLRA, 363 F.3d 468, 474–75 (D.C. Cir. 2004)
(quoting 5 U.S.C. § 706(2)(a)). The issue in this case is solely
one of accordance with law.
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The Board argues its refusal to negotiate with the Union
with respect to the consolidated unit was not an unfair labor
practice because the unit was defined in violation of § 3(d) of
the Act. According to the Board, (1) that section ―requires the
General Counsel to have independent authority over the
employees it supervises, which includes labor relations,‖ and
(2) the inclusion of GC-side and Board-side employees in a
single bargaining unit deprives the General Counsel of his
statutory authority by forcing him to negotiate over his
employees‘ conditions of employment jointly with the Board.
We first explain why we agree with the Board on both points,
then turn to the Union‘s and the Authority‘s suggestion that
the appropriate unit determination is lawful regardless
whether it conflicts with § 3(d) because the Statute supersedes
the Act to the extent the two conflict.
A. Independent Authority of the GC
The parties dispute at some length whether § 3(d)
mandates a ―complete separation‖ of the Board and the
General Counsel. The Board points to the instruction in §
3(d) that ―the General Counsel shall exercise general
supervision over all attorneys employed by the Board,‖ and
argues the Act mandates a ―clear division of authority over
NLRB personnel into two separate and independent spheres,
one headed by the General Counsel and one by the Board.‖
The Authority counters with a different clause in § 3(d) that
grants the General Counsel ―final authority, on behalf of the
Board, in respect of the [investigation and prosecution of
unfair labor practice complaints]‖; it argues the latter clause
shows the mandated separation ―is limited to … investigative
and prosecutorial functions.‖
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The Authority also points out that under § 4(a) of the Act,
29 U.S.C. § 154(a), the Board is authorized to appoint
attorneys, a grant of authority it argues is inconsistent with the
Board‘s ―complete separation‖ theory. Each agency claims
support for its position in the same bit of legislative history, a
passage in the Conference Report explaining:
[The General Counsel] is to have the final authority to
act in the name of, but independently of any direction,
control, or review by, the Board in respect of [the
investigation and prosecution of unfair labor practice
complaints].
H.R. Rep. No. 80-510, 541 (1947). Finally, the parties
dispute whether the Board‘s interpretation of the Act is
entitled to deference.
We need not resolve whether § 3(d) mandates ―complete
separation,‖ as the Board claims and the Authority denies.
The Board‘s argument on this front requires us to decide only
whether § 3(d), in providing the General Counsel ―shall
exercise general supervision‖ over all GC-side attorneys,
makes the General Counsel independent of the Board with
respect to the ―conditions of employment‖ that are subject to
collective bargaining under § 7102(2) of the Statute. We hold
it does.
Whatever the precise meaning of ―general supervision,‖
the term clearly contemplates authority over some conditions
of employment — such as employee grievance procedures
and whether an attorney may work at home — that are also
mandatory subjects of bargaining under the Statute, 5 U.S.C.
§§ 7102(2), 7116(a)(5). The Authority conceded as much at
oral argument. That is sufficient to establish that the General
Counsel‘s statutorily-mandated supervisory independence is
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implicated by the Authority‘s unit determination. We turn,
then, to whether that unit determination, by combining Board-
side and GC-side employees in the same unit, impermissibly
interferes with the General Counsel‘s independence.
B. Effect of Consolidation
The Board argues that because, under the Authority‘s unit
determination, the General Counsel and the Board will be
forced ―to negotiate one contract together,‖ ―the General
Counsel will need the consent of the Board in exercising his
supervisory authority‖ over his employees. That much is
clear. Whether the Board and the GC would both need to sign
a collective bargaining agreement or whether the Board alone
could make such an agreement binding upon the GC, remains
unclear. The Authority‘s decision is silent on this matter, its
briefs offered no clarification, nor did counsel when asked at
oral argument. In either case, however, the General Counsel
would need the Board‘s consent in order to negotiate an
agreement with the representative of his employees.
The Authority argues its determination is nonetheless
consistent with § 3(d) because the Board, in negotiating with
the Union, must and will respect the General Counsel‘s
independent authority under § 3(d). It points out that for
decades the General Counsel and the Board have engaged in
―coordinated bargaining‖ over labor issues, which has usually
resulted in similar or identical terms and working conditions
for Board-side and GC-side employees. In light of this
history of cooperation, the Authority reasons, it is
reasonable to assume, as did the Authority [in making
its appropriate unit determination], that future
incumbents would not ignore the limitations of § 3(d)
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and usurp control of the working conditions of
employees of the other components.
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.
Significantly, the Authority offers no indication how a
disagreement between the Board and the General Counsel
could be resolved were one to develop. We suppose the
General Counsel could force an impasse and elicit an unfair
labor practice complaint that he is refusing to bargain,
maintain his position of legal right through the various levels
of review before the Authority, and eventually the court of
appeals, thereby ultimately safeguarding his authority against
intrusion. Empowering the Board to put the General Counsel
to that considerable burden, however, in the sensitive context
of collective bargaining is itself an undue interference with
his supervisory authority. We conclude, therefore, that by
subjecting the General Counsel‘s exercise of his supervisory
*
That the Authority can muster no precedent to support its
assumption is not surprising; the issue is sui generis because, as the
Board argues and the Authority conceded at oral argument, the
statutory separation mandated by § 3(d) is unique.
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authority to the consent of the Board, the Authority‘s unit
determination conflicts with § 3(d) of the Act.
C. The Statute and the Act
The Union argues that, to the extent there is any conflict
between the two, the Statute amends the Act by implication.
But see Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102,
134 (1974) (―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‖ (internal quotation marks
deleted)). At oral argument the Authority for the first time
adopted this argument. As support the Union and the
Authority point to § 7112(c) of the Statute, which section
prohibits employees of an agency that administers a labor
relations law (e.g., the Board) from being represented by a
union that also represents employees to whom the Statute
applies. This is evidence, they say, the Congress had the Act
in mind when it wrote the Statute, and therefore must have
intended the Statute to supersede the Act to the extent they
conflict.
We need not determine whether the Statute amends the
Act by implication because, in the decision under review, the
FLRA claimed to have interpreted ―both statutes so that they
do not conflict‖ and affirmed the Regional Director‘s
conclusion that ―§ 3(d) does not preclude the consolidation.‖
62 F.L.R.A. at *13–14. Although ―the court [will not] upset a
decision because of errors that are not material,‖ Greater
Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir.
1970), the Authority‘s erroneous interpretation of the Act
plainly was material to its holding; therefore we must vacate
the order under review.
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In making unit determinations the Authority routinely
takes into account delegations of responsibility prescribed by
the Congress. See U.S. Dep’t of Def., Nat’l Guard Bureau, 55
F.L.R.A. 657, 661 (1999). Had the Authority correctly
interpreted the Act it might well have held the unit requested
by the Union is not appropriate under the Statute for the
reason it gave in the National Guard case, to wit, the
―statutory scheme is not workable if employees do not have a
right to negotiate with the same officials who exercise
authority over‖ their conditions of employment. Id. at 661.
That, however, is a matter for the Authority, not the court, to
address in the first instance.
III. Conclusion
The Authority relied upon an incorrect interpretation of
§ 3(d) in granting the Union‘s proposal to consolidate Board-
side and GC-side employees into a single bargaining unit. In
consequence, it erred in holding the Board engaged in an
unfair labor practice when it refused to bargain with the
Union over the conditions of employment in that unit.
Accordingly, the petition for review is granted and the cross-
petition for enforcement is denied.
So ordered.