National Labor Relations Board, Washington, D. C. (Respondent) and National Labor Relations Board Union (Charging Party/Union)

[ v63 p104 ]

63 FLRA No. 41

NATIONAL LABOR RELATIONS BOARD
WASHINGTON, D. C.
(Respondent)

and

NATIONAL LABOR RELATIONS BOARD UNION
(Charging Party/Union)

WA-CA-07-0501

_____

DECISION AND ORDER

February 11, 2009

_____

Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.

      The complaint alleges that the Respondent violated § 7116(a) (1), (5) and (8) of the Federal Service Labor-Management Relations Statute (Statute) by refusing to bargain with the Charging Party over conditions of employment of employees represented by the Charging Party. The Respondent admits that it refused to bargain, as alleged in the complaint, but denies that it committed an unfair labor practice (ULP) because it claims that the consolidated unit certified by the Authority is unlawful. The Judge granted the General Counsel's motion for summary judgment.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.

II.     Background

      The Agency administers and enforces the National Labor Relations Act (NLRA), conducting secret ballot elections to determine whether employees wish to be represented by a union and resolving alleged ULPs committed by employers and unions in the private sector. See NLRB, 62 FLRA 25, 25 (2007) (NLRB I). These functions are discharged by two components of the Agency: (1) the General Counsel (GC), and (2) the Chairman and Members of the National Labor Relations Board (Board).

      The Charging Party filed a petition seeking consolidation under § 7112(d) of the Statute of four bargaining units consisting of professional and nonprofessional employees of the GC and the Board. [n1]  The Regional Director issued a decision and order granting the petition for consolidation and directing an election among professional employees, [n2]  following which the Respondent submitted a timely application for review and motion for stay. The Authority granted the application on the ground that the application raised an issue for which there was an absence of precedent, and denied the motion for stay. As set forth below, on the merits, the Authority affirmed the finding of the Regional Director that the proposed consolidated bargaining unit of professional and nonprofessional employees was appropriate under the Statute. NLRB I.

      In finding that the Regional Director did not err in finding a consolidated bargaining unit of professional and nonprofessional employees of the GC and the Board to be appropriate, the Authority rejected the Agency's argument that § 3(d) of the NLRA and the distinct statutory roles of the GC and the Board preclude consolidation under § 7112(d) of the Statute. [n3]  NLRB I, 62 FLRA at 31-32. In this regard, the Authority found that there is nothing in the plain language of § 3(d) that either explicitly prohibits consolidation of the GC and the Board bargaining units or addresses how labor relations between the components should be structured. Id. at 32. Reviewing the legislative history of § 7112(d) of the Statute, the [ v63 p105 ] Authority further found that Congress included "no limitations concerning the appropriateness of prosecutorial and adjudicative employees of the Agency being included in the same bargaining unit." Id. The Authority determined that "the separation of prosecutorial and adjudicatory functions mandated by § 3(d) already is enforced by rules that are unrelated to the bargaining unit status of the Agency's employees." Id. In this respect, the Authority found that the Agency "carries out its mandate of prosecutorial independence by preventing ex parte communications between prosecuting attorneys and decision writers." Id. The Authority rejected the Agency's argument that consolidation would require the GC and the Board to agree on policy when they bargain, citing testimony by the Agency's Deputy GC that consolidation would not prevent the GC and the Board from proposing different working conditions for different groups of employees. Id. at 32-33. The Authority also rejected the Agency's argument that consolidation was inconsistent with the Authority's decision in United States Department of Defense, National Guard Bureau, 55 FLRA 657 (1999) (Nat'l Guard), finding that the consolidation here did not involve the same issues as those in that case. NLRB I at 33.

      Following issuance of NLRB I, the San Francisco Region of the Authority conducted an election among the Respondent's professional employees to determine whether they wished to be included in a consolidated unit with nonprofessional employees. Judge's Decision at 5. A majority of professional employees voted for inclusion in a bargaining unit with nonprofessional employees. Id. Consequently, on June 8, 2007, the Charging Party was certified as the exclusive representative of a nationwide consolidated unit of the Respondent's employees as follows:

Included: 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.
Excluded: All other professional employees, management officials, supervisors and employees described in 5 U. S .C . 7112 (b) (2), (3), (4), (6) and (7).

Id.

      Since June 25, 2007, the Respondent has refused to recognize and bargain with the Charging Party as the exclusive representative of the consolidated bargaining unit that was certified on June 8, 2007. Id.

III.     Judge's Decision

      As a preliminary matter, the Judge granted the Respondent's motion to incorporate in this case the full record in NLRB I. In addition, the Judge denied, under § 2429.5 of the Authority's Regulations, [n4]  the Respondent's request to take official notice of the petition in Case No. WA-RP-08-0002 filed by the National Labor Relations Professional Association to consolidate two professional bargaining units--one unit of GC attorneys and one unit of Board attorneys--pursuant to § 7112(d) of the Statute. [n5]  Noting that the Respondent "conjecture[s]" that the petition may become germane to this case, the Judge found that the petition has no relevance to the issue in this case. Id. at 3.

      The Judge concluded that the Respondent violated § 7116(a) (1), (5) and (8) of the Statute by refusing to bargain with the Union as the exclusive representative of the consolidated unit certified in NLRB I. Id. at 7. The Judge found that the Respondent admitted that it had refused to bargain, as alleged in the complaint. Id. at 1. The Judge also found that the Respondent's only defense for its failure to bargain was that the consolidated unit is unlawful under the Statute. Id. at 1, 6. The Judge stated that the merits of the unit certification may only be reviewed by the Authority in a representation proceeding and, as a result, he could consider only the claim that the Respondent refused to bargain over conditions of employment and was precluded from considering the merits of the certification of the consolidated unit. Id. at 6-7. The Judge further stated that, "on the basis of the undisputed facts" in the record, the General Counsel had supported the burden of proving the allegations of the complaint. Id.

      Based on the foregoing, the Judge found that the Respondent had violated the Statute, as alleged in the complaint. As a remedy, the Judge ordered the Respondent to recognize the Charging Party as the exclusive representative of the consolidated unit, and, upon request, negotiate with the Charging Party over conditions of employment of employees in the consolidated unit. Id. [ v63 p106 ]

IV.     Positions of the Parties

A.     Respondent's Exceptions

      As a preliminary matter, the Respondent contends that the Judge erred in denying its request made under § 2429.5 of the Authority's Regulations to take official notice of a petition in NLRB II. Brief in Support of Exceptions (Brief) at 19 n.8. According to the Respondent, the issues in the two cases are similar and warrant the taking of official notice. See id.

      The Respondent claims on the merits that the Authority's decision in NLRB I to certify the consolidated unit is erroneous because it: (1) is based on a misapprehension of the law; (2) is based on a misunderstanding of the history of coordinated bargaining involving the GC and the Board; and (3) creates a conflict between § 3(d) of the NLRA and § 7112(d) of the Statute. Id. at i.

      With regard to its claim that the Authority's decision in NLRB I is based on a misapprehension of the law, the Respondent contends that the Judge disregarded the legal errors made by the Authority in NLRB I. Id. at 1. Specifically, the Respondent argues that, by consolidating the GC and the Board bargaining units, the Authority disregarded the plain language of § 3(d) of the NLRA, and failed to defer to the Respondent's interpretation of its own statute. Id. at 7, 9. The Respondent adds that in NLRB I, the Authority erroneously focused on whether the GC or the Board was "likely to ignore the limitations of § 3(d) and attempt to control the working conditions of employees in the other component." Id. at 10. The Respondent asserts that, although presidential appointees to the GC and Board have demonstrated an ability to cooperate, "Congress set up a structure intended to endure regardless of the good will or shared vision between . . . presidential appointees." Id.

      With regard to its claim that the Authority's decision in NLRB I is based on a misunderstanding of the history of coordinated bargaining involving the GC and the Board, the Respondent contends that, while GC and the Board representatives have engaged in coordinated bargaining, neither component ever ceded its separate authority on personnel and labor relations matters to the other. Id. at 11-12. The Respondent also points to several instances where the GC or the Board has implemented a policy different from the other, including differences in performance appraisal systems, career ladder grade structures of attorneys and procedures governing EEO complaints. Id. at 14-15.

      As for its claim that the Authority's decision in NLRB I creates a conflict between § 3(d) of the NLRA and § 7112(d) of the Statute, the Respondent contends that the consolidation of the GC and the Board bargaining units "repeals by implication" § 3(d) of NLRA and implements a bargaining structure that negates the independent supervisory authority of the GC and the Board. Id. at 19. The Respondent also asserts that NLRB I is inconsistent with the Authority's decision in Nat'l Guard, in which the Respondent claims that the Authority rejected a proposed unit consolidation that "would establish lines of authority for labor relations at odds with the lines of authority governing the employment of [employees] in their work." Id. at 16 (quoting Nat'l Guard, 55 FLRA at 663).

B.     General Counsel's Opposition

      As an initial matter, the General Counsel contends that the Judge properly denied the Respondent's request to take official notice of the petition filed in NLRB II. Opposition at 3. According to the Charging Party, the Respondent offers nothing but "conjecture" that the petition may become relevant to this case. Id.

      The General Counsel contends that the Judge properly found that the Respondent violated § 7116(a)(1), (5) and (8) of the Statute by its admitted refusal to bargain over matters affecting the conditions of employment of employees in the consolidated unit. In this regard, the General Counsel argues that it is well established in the private and federal sectors that a respondent is not permitted to relitigate issues resolved during representation case proceedings in subsequent ULP proceedings, "absent new evidence or previously unavailable evidence or special circumstances." Id. at 2. In support, the General Counsel relies on Texas Industries, Inc., 199 NLRB 671, 672 n.2 (1972) (Texas Industries, Inc.) (citing Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941)) and FDIC, 40 FLRA 775, 782-83 (1991) (FDIC), enf'd sub nom. FLRA v. Federal Deposit Insurance Corporation, No. 91-1207 (D.C. Cir. Sept. 1, 1992). The General Counsel maintains that, as the Respondent raises no claim of newly discovered or previously unavailable evidence or special circumstances warranting the relitigation of issues in the prior representation proceeding, the Authority should find a violation of the Statute. Opposition at 2-3.

V.     Analysis and Conclusions

      The Respondent's only defense for its failure to bargain is that the consolidated unit certified by the Authority in NLRB I is unlawful. Judge's Decision at 1, 6. In this regard, as set forth above, the Respondent [ v63 p107 ] admits in the answer to the complaint that it is challenging the Union's certification in the ULP proceeding. Id. (citing Respondent's Answer to the Complaint and Notice of Hearing).

      In circumstances where a respondent attempts to challenge a union's certification in a ULP proceeding, the standard of review is well settled in both the private and federal sectors. In the private sector, NLRB precedent provides:

It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.

Texas Industries Inc., 199 NLRB at 672.

      In the federal sector, the Authority determined to follow NLRB precedent in rejecting an agency's attempt to challenge the union's certification in a ULP proceeding. FDIC, 40 FLRA at 782. In this regard, the Authority stated:

The Respondent admits that it is attempting to challenge the Union's certification through this unfair labor practice proceeding. With regard to the merits of its actions, it has raised in this proceeding only the two arguments we addressed in our decision in FDIC [38 FLRA 952]. After careful consideration of the Respondent's brief in this case, we conclude that the Respondent is merely attempting to relitigate that decision. It has offered no new evidence or previously unavailable evidence or special circumstances warranting an entitlement to relitigate issues that were or could have been litigated in the prior representation proceeding. See, for example, Texas Industries, Inc.; Pittsburgh Plate Glass Co.

FDIC, 40 FLRA at 782.

      Consistent with the foregoing, a respondent in a ULP proceeding is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding absent newly discovered or previously unavailable evidence or special circumstances. Id.

      In its exceptions, the Respondent presents no newly discovered or previously unavailable evidence or special circumstances. Instead, the Respondent claims that the Authority's decision in NLRB I to certify the consolidated unit: (1) is based on a misapprehension of the law; (2) is based on a misunderstanding of the history of coordinated bargaining involving the GC and the Board; and (3) creates a conflict between § 3(d) of the NLRA and § 7112(d) of the Statute. Brief at i. The Respondent made the same arguments in the representation proceeding. [n6]  NLRB I, 62 FLRA at 31-34. Similarly, the Respondent chose to rely on the record adduced in the previous representation proceeding, and did not contest the evidence and material factual assertions offered by the General Counsel in the ULP proceeding.

      In sum, after careful consideration of the Respondent's exceptions in this case, we conclude that the Respondent has offered no new evidence or previously unavailable evidence or special circumstances warranting an entitlement to relitigate issues that were or could have been litigated in the prior representation proceeding. FDIC, 40 FLRA at 782. We therefore find that the Respondent has not raised any issue which is properly litigable in this ULP proceeding. Accordingly, we conclude that the Respondent violated § 7116(a)(1), (5) and (8) of the Statute by refusing to negotiate and by otherwise refusing to accord the Union its statutory status as exclusive bargaining representative of the employees in the consolidated bargaining unit. [n7]  Id.

VI.     Order

      Pursuant to § 2423.41 of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute (the Statute), it is hereby ordered [ v63 p108 ] that the National Labor Relations Board, Washington, D.C. (Respondent):

      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.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the National Labor Relations Board, Washington, D.C., violated the Federal Service Labor-Management Relations Statute (the Statute), and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT refuse to bargain with the National Labor Board Union (Union) as the exclusive representative of the consolidated bargaining unit certified on June 8, 2007.

WE WILL NOT otherwise refuse to accord the Union its statutory status as the exclusive representative of the consolidated bargaining unit certified on June 8, 2007.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights assured them under the Statute.

WE WILL 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.

WE WILL, upon request, negotiate in good faith with the Union over conditions of employment of employees in the consolidated unit certified on June 8, 2007.

[ v63 p109 ] WE WILL accord the Union and the employees in the consolidated bargaining unit certified on June 8, 2007, all rights and entitlements provided in the Statute.

                           _______________________
(Respondent Representative)

Dated: ________ By: ________________________

      (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, whose address is: Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, CA 94103-1791, and whose telephone number is: (415) 356- 5000.


File 1: Authority's Decision in 63 FLRA No. 41
File 2: ALJ's Decision


Footnote # 1 for 63 FLRA No. 41 - Authority's Decision

   Section 7112(d) of the Statute provides, in pertinent part:

[ that] [t]wo or more units which are in an agency and for which a labor organization is the exclusive representative may, upon petition by the agency or labor organization, be consolidated with or without an election into a single larger unit if the Authority considers the larger unit to be appropriate.

Footnote # 2 for 63 FLRA No. 41 - Authority's Decision

   Section 7112(b)(5) provides that a bargaining unit will not be determined to be appropriate if it includes "both professional employees and other employees, unless a majority of the professional employees vote for inclusion in the unit[.]"


Footnote # 3 for 63 FLRA No. 41 - Authority's Decision

   Section 3(d) of the NLRA, 29 U.S.C. § 153(d), provides, in pertinent part:

[t]he [GC] of the Board 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. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of [ULP] complaints . . . and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law.

Footnote # 4 for 63 FLRA No. 41 - Authority's Decision

   Section 2429.5 of the Authority's Regulations provides, in pertinent part: "The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . Administrative Law Judge . . . . The Authority may, however, take official notice of such matters as would be proper."


Footnote # 5 for 63 FLRA No. 41 - Authority's Decision

   On December 12, 2008, the Authority issued an Order denying the application for review in Case No. WA-RP-08-0002 of the Regional Director's finding that the consolidated unit was appropriate. NLRB, Wash, D.C., 63 FLRA 47 (2008) (Chairman Beck writing separately) (NLRB II.).


Footnote # 6 for 63 FLRA No. 41 - Authority's Decision

   In its brief the Respondent also asserts that the Authority is required to provide it deference on interpretation § 3(d) of the NLRA. Brief at 7, 9. The Respondent raised this argument for the first time in this ULP case; there is no indication in the record that the argument was raised in the representation proceeding. NLRB I. We note that, in contrast, the Respondent in NLRB II argued that the Authority was required to provide it deference on interpretation of certain sections of the NLRA, including § 3(d). 63 FLRA at 52 n.10. In response, the Authority noted that it did not disagree with the Respondent on the interpretation of § 3(d) and that, instead, the Authority disagreed with the Respondent with regard to the effect of that section on the application of § 7112(d) of the Statute, a provision on which the Respondent neither claimed nor was due deference. Id.


Footnote # 7 for 63 FLRA No. 41 - Authority's Decision

   As noted, § 2429.5 of the Authority's Regulations permits the Authority to take official notice of such matters "as would be proper." The Respondent has not established that the Judge erred in denying its request, under