National Labor Relations Board, Washington, D.C. (Agency) and National Labor Relations Board Professional Association (Petitioner/Exclusive Representative)

[ v63 p47 ]

63 FLRA No. 16

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

and

NATIONAL LABOR RELATIONS BOARD
PROFESSIONAL ASSOCIATION
(Petitioner/Exclusive Representative)

WA-RP-08-0002

_____

ORDER DENYING
APPLICATION FOR REVIEW

December 12, 2008

______

Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member [n1] 

I.      Statement of the Case

      This case is before the Authority on an application for review filed by the Agency under § 2422.31 of the Authority's Regulations. [n2]  The Union filed an untimely opposition to the Agency's application. [n3] 

      The Regional Director (RD) found that a consolidated bargaining unit, consisting of the Union's two professional bargaining units, was appropriate.

      For the following reasons, we conclude that the Agency has not established that the RD erred in finding the consolidated bargaining unit to be appropriate.

II.     Background and RD's Decision

A.     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 unfair labor practices (ULPs) committed by employers and unions in the private sector. RD's Decision at 4; 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 (the Board). The two components have specific roles set out by statute and Agency delegation. The GC investigates and prosecutes ULP cases and processes representation petitions, which involves conducting elections and resolving disputes; the GC also acts as the Board's lawyer. RD's Decision at 6, 9-12; NLRB I, 62 FLRA at 25. The Board is a quasi-judicial body that decides appeals from decisions of administrative law judges in ULP cases and from decisions of regional directors in representation cases. [n4]  RD's Decision at 4, 9; NLRB I, 62 FLRA at 25. Under § 3(d) of the NLRA, the GC has the authority to supervise all attorneys of the Agency, except those provided for under § 4(a) who perform [ v63 p48 ] legal work directly for the Board Members.  [n5]  RD's Decision at 2.

      The Union filed a petition seeking to consolidate its two professional bargaining units -- one unit of GC-side attorneys and one unit of Board-side attorneys -- pursuant to § 7112(d) of the Federal Service Labor-Management Relations Statute (the Statute). [n6]  Both units are located in the Agency's Washington, D.C. headquarters, and both are comprised solely of attorneys. Nearly all of the attorneys in both units are in the GS-0905 series, and have similar position titles. The GC-side bargaining unit consists of approximately 67 attorneys who serve either as a prosecutor appearing before the Office of the Administrative Law Judges of the Board or as an attorney defending the Board from outside attacks. Id. at 9-12. The most common job title is "General Attorney (Labor)" and all of the GC-side attorneys are GS-14's or below. Id. at 12. The Board-side bargaining unit consists of approximately 63 attorneys, all of whom serve either as legal clerks to individual Board members or in the Board's Representation Unit. Id. Nearly all attorneys on the Board-side have the official title of "Attorney-Adviser (Labor)" and are generally GS-14's or below; some, however, are designated as "Senior Counsel - Expert," and are GS-15's. Id.

      The RD found that the attorneys in the two bargaining units are "substantially similar." Id. In this regard, the RD determined that attorneys in both units have similar position titles and grades; they all work in the same building, in similar office settings, and with the same type of equipment; they receive training together; and they are subject to many common Agency policies (e.g., leave and attendance, transit subsidies, official travel, email and internet usage, ethics). Id. at 12-13.

      The RD also found that there are a variety of opportunities for attorneys from each unit to work in the other unit on a temporary basis. In this connection, Article 28 in each unit's collective bargaining agreement governs "The Exchange Program (Details)" and Article 35 in each agreement covers "Flexible Work Assignments." Id. at 15-16. There are also provisions in each agreement providing for permanent transfers from one component to the other. Id. at 16.

      With respect to labor relations matters, the RD determined that the head of the Agency's Labor Relations Section coordinates GC and Board concerns to achieve a unified bargaining position for the Agency. Id. at 17. For day-to-day labor relations, the head of the Labor Relations Section notifies the Union President concerning any issue regarding either unit. Where a proposed change has agency-wide implications, the Union President testified that she receives one formal notice from the Agency covering both units. Id. at 18. In turn, the Union generates a unified response for both units. Similarly, when the Agency holds budget briefings with the Union, it holds one briefing for both units.

      According to the RD, the parties have also engaged in "joint bargaining," with one Union team representing both units and one Agency team representing the GC and the Board. Id. The RD found that the Agency has bargained successfully to obtain different provisions covering employees in the same bargaining unit. Id. at 18-19. As an example, the RD cited the parties' telecommuting agreement, in which the provisions differ among GC employees. The RD further cited to testimony by an Agency official that, "if the units were consolidated, [then] there is no reason [that] the Board and the GC could not maintain differences in the conditions of employment of attorneys on either side." Id. at 19.

      Citing the testimony of the Agency's Solicitor, the RD found that the existing collective bargaining agreements for the Union's two units are "virtually identical in virtually all respects[.]" Id. at 19. Further, the RD credited the Deputy GC's testimony that the parties have a 38-year history of conducting one set of negotiations for the Union's two units. In this respect, simultaneous negotiating sessions were held for the most recent contracts. Further the agreements were mediated simultaneously. The Union also files "parallel grievances," one against each Agency component, and arbitrates issues that arise under both contracts jointly. Id. at 20. [ v63 p49 ]

B.     RD's Decision

      The RD addressed two issues: (1) whether §§ 3(d) and 4(a) of the NLRA preclude consolidation of the two units under § 7112(d) of the Statute; and (2) whether the proposed consolidated unit meets the appropriate unit criteria under § 7112(d). See id. at 21.

      In addressing the first issue, the RD relied on NLRB I, 62 FLRA 25, in which the Authority rejected the Agency's argument, raised again here, that § 3(d) prohibits the consolidation of GC and Board bargaining units. [n7]  See RD's Decision at 21. The RD concluded that giving full consideration to the Agency's arguments under the circumstances of this case did not lead to a different result from that in NLRB I. Id. In this regard, the RD found that "[unit] [c]onsolidation has nothing to do with the GC's separate statutory authority to issue complaints, or the Board's authority to determine whether [ULPs] have occurred." Id.

      Further, the RD found that there is "[n]othing in the plain language" of § 3(d) or § 4(a) that "explicitly prohibits consolidation of GC and Board bargaining units or addresses how labor relations among Agency personnel in both components should be structured." See id. In addition, the RD found that "the Statute does not contain any special exception codifying the supposed `complete separation' asserted to exist by the [Agency]." Id. (quoting NLRB 1, 62 FLRA at 32). In this regard, the RD noted the Authority's explanation that "comments over the enactment of [§] 7112(c) of the Statute" indicate that Congress had the Agency in mind when it crafted a provision to prohibit Agency employees from being represented by any private-sector union. Id. In sum, the RD found that, to the extent the Agency is repeating the arguments that it raised in NLRB I, the circumstances in the present case are not materially different.

      According to the RD, the hearing in this case demonstrated conclusively that, with "the exception of when the GC acts as a prosecutor, no complete separation from the Board exists." Id. In support, the RD stated that attorneys on the GC-side perform prosecutorial work, "where an arms-length relationship with the Board is required," and also serve as lawyers to the Board, where "the relationship between the Board and GC is far closer." Id.

      The RD further found that the different roles of the GC-side and the Board-side components have not undermined the effectiveness of the Agency. Id. at 21. In this regard, the RD determined that, if the Agency were genuinely concerned that the public would be suspicious of a bargaining unit that consisted of attorneys from both sides, as the Deputy GC testified, then the Agency would not allow its attorneys "to cross over to the other side" by performing details. Id. The RD further found that the Agency has established ex parte rules to prevent "untoward contact" when attorneys are detailed from one component to the other, and no reason has been presented, and none is apparent, to suggest that consolidation would undermine existing ex parte rules in any way. See id. at 21-22. In sum, the RD concluded that the fact that attorneys on one side frequently cross over to work on the other side is "further proof that no complete separation among attorneys in the two bargaining units exists." Id. at 22.

      The RD also concluded that the proposed consolidated unit is appropriate under § 7112(d) because it satisfies the appropriate unit criteria under § 7112(a). [n8]  In this regard, the RD determined that the employees in the consolidated unit share a clear and identifiable community of interest and that the consolidation would promote effective dealings with, and efficient operations of, the Agency. [n9] 

      As relevant here, the RD found that a consolidated unit would promote effective dealings with the Agency because, in many respects, the two bargaining units are already treated as a single group. Id. at 26. In this regard, the RD found that, as in NLRB I, the GC and the Board jointly formulate broad operating policies and procedures, including significant labor and employee relations policies, at the headquarters level. Id. According to the RD, "[t]o a very large degree," the Agency -- through the GC and the Board -- establishes similar policies for all attorneys. Id. Further, as in NLRB I, the RD found that, "to the extent the two components desire separate policies or conditions of employment, they are free to propose such policies in bargaining." Id.

      [ v63 p50 ] The RD further found that the Agency has voluntarily chosen to engage in "joint bargaining" over issues affecting both units. Id. Specifically, the RD cited "decades of joint collective bargaining" over contracts that are "virtually identical" and that have a single Agency bargaining team for both units. Id. According to the RD, "joint negotiations" have occurred in other areas "of critical concern," such as matters involving the budget (e.g., the curtailment of performance awards, an increased pool of cash awards and less Quality Step Increases, no-cost details for both sides, and additional funds at the end of the year), as well as over remote access software for all attorneys, new identification cards, Agency Equal Employment Opportunity procedures, and the use of Agency-provided internet and email. Id. In addition, the RD found that the parties have processed grievances jointly, particularly at arbitration. See id. at 27.

      The RD rejected the Agency's assertion that consolidation "will offer no reasonable promise of effective dealings." Id. In this regard, the RD noted that the law does not require that the consolidated unit will be more appropriate than an unconsolidated unit, but only that a consolidated unit is appropriate. See id. (citing United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 55 FLRA 359, 364 (1999) (AFMC)). Accordingly, as the parties' bargaining history "shows [that] they already handle many issues as though [a] consolidation has taken place[,]" the RD concluded that the consolidated unit would promote effective dealings with the Agency. Id.

      Based on the foregoing, the RD determined that the consolidated bargaining unit sought by the Union, consisting of two professional bargaining units, was appropriate.

III.     Positions of the Parties

Agency's Application for Review

      The Agency contends that the RD's decision to consolidate the GC and the Board bargaining units conflicts with the "complete separation" of GC and Board functions required by §§ 3(d) and 4(a) of the NLRA. See Application at 15. The Agency maintains that Congress unambiguously established separate supervisory authorities for the GC and the Board components of the Agency "so they would have independent programmatic authority over their own separate adjudicatory and prosecutorial functions[.]" Id. at 2. In concluding otherwise, the Agency argues that the RD failed to defer to the Agency's interpretation of its own statute. Id. at 2, 17-21.

      The Agency argues that established law and policy warrant reconsideration because the consolidation creates an unavoidable conflict between the NLRA and the Statute. Id. at 25-26. In this regard, the Agency asserts that the consolidation of the GC and the Board bargaining units "repeals by implication" §§ 3(d) and 4(a) of the NLRA and implements a bargaining structure that negates the independent supervisory authority of the GC and the Board. Id. at 25-26. In addition, the Agency asserts that NLRB I is inconsistent with the Authority's decision in United States Department of Defense, National Guard Bureau, 55 FLRA 657 (1999) (Nat'l Guard), in which it 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." Application at 28 (quoting Nat'l Guard, 55 FLRA at 663).

      Finally, the Agency asserts that the RD committed a clear and prejudicial error concerning a substantial factual matter in finding that there was a history of "joint bargaining" involving the GC and the Board, which could continue under the proposed consolidated unit. Id. at 21-22. According to the Agency, the correct terminology for the Agency's method of bargaining with the Union is "coordinated bargaining," which it asserts refers to "a practice whereby parties share information and coordinate efforts[,] but ultimately retain the authority to negotiate contract terms individually." Id. at 22 (citations omitted). The Agency asserts that, under United States Food and Drug Administration, Northeast and Mid-Atlantic Regions, 53 FLRA 1269, 1276 (1998) (FDA), in a consolidated unit, a party has no right to insist upon separate contracts. Thus, the Agency contends that, in a consolidated unit, each component would no longer have the "safety valve mechanism" to walk away and pursue a different bargaining direction. Id. at 24-25. Further, the Agency claims that the potential for one component to impose its views on the other is "greatly heightened" when the parties are bargaining with one unit for one contract. Id. at 25.

IV.     Analysis and Conclusions

      Section 7112(d) of the Statute permits consolidation of two or more bargaining units represented by the same exclusive representative "if the Authority considers the larger unit to be appropriate." 5 U.S.C. § 7112(d). This provision was intended by Congress to "better facilitate the consolidation of small units" into more comprehensive ones. AFMC, 55 FLRA at 361 [ v63 p51 ] (quoting 124 Cong. Rec. H9634 (daily ed. Sept. 13, 1978) (statement of Representative Udall)). Consolidation serves a statutory interest in reducing unit fragmentation and in promoting an effective, comprehensive bargaining unit structure. See Army & Air Force Exch. Serv., Dallas, Tex., 5 FLRA 657, 661-62 (1981) (AAFES); Air Force Logistics Command, United States Air Force, Wright-Patterson Air Force Base, Ohio, 7 FLRA 210, 214 (1981). The reference in § 7112(d) to the consolidation of "appropriate" units incorporates the appropriate unit criteria established in § 7112(a). AFMC, 55 FLRA at 361.

A.     The RD did not fail to apply established law.

      The Agency contends that the RD failed to apply established law because his decision to consolidate the GC and the Board bargaining units conflicts with the "complete separation" of GC and Board functions required by §§ 3(d) and 4(a) of the NLRA. See Application at 15. The RD found that the Agency was repeating the same arguments regarding § 3(d) that it raised, and that were rejected by the Authority, in NLRB I. After giving full consideration to those arguments here, the RD concluded that the circumstances of this case did not lead to a different result as that in NLRB I.

      In finding that a consolidated unit of professional and non-professional GC and Board bargaining units was appropriate in NLRB I, 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. In this regard, the Authority determined that there is nothing in the plain language of § 3(d) that explicitly prohibits consolidation of the GC and the Board bargaining units or addresses how labor relations among Agency personnel in both components should be structured. See NLRB I, 62 FLRA at 32. Reviewing the legislative history of § 7112(d), the 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. In that case, the Authority rejected the Agency's argument that consolidation would require the GC and the Board to agree on policy when they bargain and cited 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. See id. at 32-33.

      For the reasons that follow, we find that the RD did not err in concluding that the circumstances of this case do not lead to a different result as that in NLRB I.

      To the extent the Agency argues that Congress intended a "complete separation" of GC and Board supervisory functions under §§ 3(d) and 4(a) of the NLRA, Application at 15, the Agency has not demonstrated that either §§ 3(d) or 4(a) would render inappropriate a consolidated unit of GC and Board employees. In this regard, the plain language of § 3(d) provides that the GC "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) (emphasis added). Section 3(d) also provides that the GC shall have "final authority" over the investigation of ULP charges and the issuance of ULP complaints. Id. In this regard, as found by the RD and as stated by the Authority in NLRB I, there is nothing in the plain language of § 3(d) that prevents the GC and the Board from performing labor relations functions together, and the Agency has provided no evidence to the contrary. NLRB I, 62 FLRA at 31.

      Similarly, the Agency has failed to demonstrate that the RD erred in finding that the plain language of § 4(a) does not preclude consolidation. In this regard, the plain language of § 4(a) provides that the Board "may not employ any attorneys for the purpose of reviewing transcripts of hearings or preparing drafts of opinions except that any attorney employed for assignment as a legal assistant to any Board member may for such Board member review such transcripts and prepare such drafts." 29 U.S.C. § 154(a). Thus, § 4(a) merely provides the Board with the authority to hire attorneys who draft decisions on behalf of the individual Board Members, and who are specifically excluded from the general supervision of the GC under § 3(d). As with §3(d), there is nothing in the plain language of § 4(a) that prevents the GC and the Board from performing labor relations functions together, and the Agency has provided no evidence to the contrary.

      Further, as noted in NLRB I, § 7112(d) of the Statute permits unions to seek consolidation of existing bargaining units to facilitate the creation of more comprehensive units, as long as the resulting consolidated unit is appropriate. There is nothing in the Statute excepting the Agency from this provision. Thus, there [ v63 p52 ] is no impediment under the Statute to a bargaining unit that includes both GC and Board attorneys.

      Based on the foregoing, the RD's finding that there is "[n]othing in the plain language" of § 3(d) or § 4(a) that "explicitly prohibits consolidation of GC and Board bargaining units or addresses how labor relations among Agency personnel in both components should be structured" is correct and consistent with NLRB I. RD's Decision at 21. In addition, the RD's finding that "the Statute does not contain any special exception codifying the supposed `complete separation' asserted to exist by the [Agency]" is similarly correct. Id. (quoting NLRB 1, 62 FLRA at 32).

      Further, as in NLRB I, the Agency has not challenged the RD's conclusion that the separation of prosecutorial and adjudicatory functions mandated by § 3(d) already is enforced by ex parte rules. The Agency has also failed to present any argument or assertion to suggest that consolidation would undermine existing ex parte rules in any way. See id. at 21-22.

      Accordingly, for the reasons stated in NLRB I and as set forth above, we conclude that the Agency has not established that the RD erred in concluding that §§ 3(d) and/or 4(a) of the NLRA do not prohibit the consolidation of the two professional bargaining units of Agency Headquarters attorneys. [n10] 

B.     The Agency has not demonstrated that established law or policy warrants reconsideration.

      The Agency contends that the Authority's decision in NLRB I, on which the RD relied, warrants reconsideration. See Application at 3. However, as described above, the Agency has not provided any support for its assertion that the Authority erred in concluding that the consolidated unit sought in that case, consisting of both GC and Board bargaining units, was appropriate. [n11]  Further, the Agency's assertion that NLRB I is inconsistent with the Authority's decision in Nat'l Guard is misplaced. This same argument was raised and rejected in NLRB I. See NLRB I, 62 FLRA at 32.

      In Nat'l Guard, the petitioning union sought to consolidate bargaining units of National Guard technicians in 39 states. Technicians are a "hybrid class" of employees who work in a military environment under the immediate control of state officers, but who must also maintain their military status in the Federal National Guard. Nat'l Guard, 55 FLRA at 657. There, the Authority found that a consolidated unit would be inappropriate because the union was seeking a consolidated federal agency bargaining unit that would have bypassed the state authority over technicians. See id. at 661. The Authority found that the consolidation in NLRB I did not involve the same issues as those in Nat'l Guard because, in contrast, the supervisory authority in NLRB I was vested in two components of the same federal agency that would both participate in the consolidated unit. NLRB I, 62 FLRA at 33. Thus, the Authority concluded that there was no separation between the two components' authority over bargaining and over the authority for working conditions: both units would participate in bargaining and in setting working conditions. Consequently, the Authority concluded that the consolidation in NLRB I did not involve the same issues as those in Nat'l Guard.

      The Agency has provided no basis -- other than its §§ 3(d) and 4(a) "complete separation" of authority arguments that were rejected above -- for finding that the Authority erred in distinguishing NLRB I from Nat'l Guard. Accordingly, we find that the Agency has not demonstrated that established law or policy warrants reconsideration.

C.     The Agency has not established that the RD committed a clear and prejudicial error concerning a substantial factual matter.

      The Agency contends that the RD committed a clear and prejudicial error concerning a substantial factual matter in finding that there was a history of "joint" --and not "coordinated" -- bargaining involving the GC and the Board, which could continue under the proposed consolidated unit. Application at 21-22. The [ v63 p53 ] Agency's argument is premised on a claim that, after consolidation, one Agency component could impose its views on the other. See id. at 25.

      Although the RD stated that the parties had voluntarily engaged in "joint bargaining," based on testimony and consistent with NLRB I, he also found that, "to the extent the two components desire separate policies or conditions of employment, they are free to propose" separate conditions of employment. RD's Decision at 26 (quoting NLRB I, 62 FLRA at 36). The Agency has not pointed to any reason why, in a consolidated unit, the GC and the Board could not maintain differences in the conditions of employment of attorneys within the two components.

      In this regard, the RD specifically found, and the Agency does not dispute, that the Agency has already bargained successfully to obtain different provisions covering employees in the same bargaining unit. Id. at 18-19. Specifically, the RD cites the parties' telecommuting agreement, under which the provisions differ among GC employees, as an example. Id. There is also undisputed testimony by an Agency official that, "if the units were consolidated, [then] there is no reason the Board and the GC could not maintain differences in the conditions of employment of attorneys on either side." Id. at 19. Accordingly, even assuming that the RD's statement regarding joint bargaining is clearly erroneous, we find that such error does not constitute a prejudicial error concerning a substantial factual matter because the Agency has not shown that, with a consolidated unit, it would not be able to negotiate separate conditions of employment for attorneys within each component.

      Further, the Agency's reliance on FDA, for the proposition that a party has no right to insist on separate contracts is misplaced. In that case, the Authority held that a proposal to negotiate two separate collective bargaining agreements within one bargaining unit was a permissive subject of bargaining. See FDA, 53 FLRA at 1276. As such, both parties in negotiations have a unilateral right to negotiate one contract. See id. In contrast to FDA, there is no indication in the record here that the Agency or the Union intends to pursue two contracts for the consolidated unit.

      There is also no support for the Agency's assertion that, in negotiating one contract, an increased potential exists for one component to impose its view on the other component. As set forth above, the GC and the Board will be able to maintain differences in the conditions of employment of attorneys within the GC and Board components, and it is undisputed that the Agency has already bargained successfully to obtain different provisions covering employees in the same bargaining unit. RD's Decision at 18-19.

      Accordingly, the Agency has not established that the RD's finding, even if erroneous, prejudicially affected the Agency's rights. Consequently, we find that the Agency has not established that the RD committed a clear and prejudicial error concerning a substantial factual matter warranting review of his decision.

V.     Order

      The application for review is denied. [ v63 p54 ]


Separate Opinion of Chairman Beck:

      I write separately to note two potential consequences that may occur as a result of our application of the § 7112(d) "appropriate unit" standard.

      The Federal Service Labor-Management Relations Statute does not require that a proposed bargaining unit be the "most appropriate"; rather, the Statute requires only the minimal showing that a bargaining unit be "appropriate." Air Force Materiel Command, Wright-Patterson AFB, 55 FLRA 359, 364 (1999). Once the consolidated unit is certified, there is no impediment under our Statute that would prevent the Agency (or an individual employee) from filing a new petition, pursuant to 5 C.F.R. § 2422.2, seeking the establishment (or, more accurately, the re-establishment) of separate units. Considering the parties' decades-long history of effective dealings while operating with separate bargaining units for the General Counsel and the Board, it would be difficult for the Regional Director to find that separate units are not "appropriate." This potential of cycling between different bargaining unit structures is not explicitly prohibited by the Statute, but appears to me to be inconsistent with the Statute's "strong endorsement" of resolving labor disputes with "finality," see Dep't of HHS, SSA, 41 FLRA 755, 768 (1991) (citing U.S. Marshals Serv. v. FLRA, 1417, 1420 (9th Cir. 1983)), as well as the Statute's mandate that it be interpreted in "a manner consistent" with "an effective and efficient Government." 5 U.S.C. § 7101(b).

      Further, our certification of a consolidated unit appears to have the additional effect of forcing the General Counsel and Board components of the NLRB to bargain as if they were a single managing entity, when their statutory organizational structure allows for policies and operations that are separate and distinct.

      Despite these concerns, given the record that was adduced before the Regional Director, I cannot necessarily conclude that the consolidated unit is not appropriate. If the concerns set forth above are to be addressed, they must be addressed by the Congress.



Footnote # 1 for 63 FLRA No. 16 - Authority's Decision

   The separate opinion of Chairman Beck is set forth at the end of this decision.


Footnote # 2 for 63 FLRA No. 16 - Authority's Decision

   Section 2422.31 of the Authority's Regulations provides, in pertinent part:

(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1)     The decision raises an issue for which there is an absence of precedent;
(2)     Established law or policy warrants reconsideration; or,
(3)     There is a genuine issue over whether the Regional Director has:
     (i) Failed to apply established law;
     (ii) Committed a prejudicial procedural error;
     (iii) Committed a clear and prejudicial error concerning a substantial factual matter.

Footnote # 3 for 63 FLRA No. 16 - Authority's Decision

   On October 27, 2008, the Authority issued an Order granting the Union's request for an extension of time to file an opposition to the application for review. The Order directed that the Union's opposition "must be received by the Authority by close of business on November 12, 2008[.]" Order (Oct. 27, 2008) (emphasis in original). On November 12, 2008, the Union filed its opposition by U.S. Postal Service and the Authority did not receive it until November 17, 2008. As the Union's opposition was received by the Authority on November 17, 2008, we find that the opposition was untimely filed and do not consider it.


Footnote # 4 for 63 FLRA No. 16 - Authority's Decision

   The responsibilities of the Board are set forth in § 4(a) of the NLRA:

The Board shall appoint an executive secretary, and such attorneys, examiners, and regional directors, and such other employees as it may from time to time find necessary for the proper performance of its duties. The Board may not employ any attorneys for the purpose of reviewing transcripts of hearings or preparing drafts of opinions except that any attorney employed for assignment as a legal assistant to any Board member may for such Board member review such transcripts and prepare such drafts.

RD's Decision at 4 (quoting 29 U.S.C. § 154(a)).


Footnote # 5 for 63 FLRA No. 16 - Authority's Decision

   Section 3(d) provides, in pertinent part, that:

<