National Association of Agriculture Employees (Union) and United States, Department of Homeland Security, Bureau of Customs and Border Protection (Agency) and American Federation of Government Employees, AFL-CIO (Labor Organization) and National Treasury Employees Union (Labor Organization) and American Federation of Government Employees National Border Patrol Council, AFL-CIO (Labor Organization) and National Association of Plant Protection and Quarantine Office Support Employees (Labor Organization)

[ v61 p545 ]

61 FLRA No. 101

NATIONAL ASSOCIATION OF
AGRICULTURE EMPLOYEES
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
BUREAU OF CUSTOMS AND
BORDER PROTECTION
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO
(Labor Organization)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Labor Organization)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
NATIONAL BORDER PATROL COUNCIL
AFL-CIO
(Labor Organization)

and

NATIONAL ASSOCIATION
OF PLANT PROTECTION
AND QUARANTINE OFFICE
SUPPORT EMPLOYEES
(Labor Organization)

O-MC-22

_____

ORDER DENYING MOTION
FOR STAY OF ELECTION

April 18, 2006

I.     Statement of the Case

      This case is before the Authority on a motion for a stay of the Regional Director's (RD's) Decision and Order (Order) directing an election in United States Dep't of Homeland Security, Bureau of Customs and Border Protection, WA-RP-04-0067 et al., filed by the [ v61 p546 ] National Association of Agricultural Employees (NAAE). The Authority denied NAAE's application for review of the RD's Order in United States Dep't of Homeland Security, Bureau of Customs and Border Protection, 61 FLRA 485 (2006) (Customs and Border Protection). Specifically, the Authority rejected NAAE's claim that Agriculture Specialists and Agriculture Technicians should not be included in a unit of all employees of the Office of Field Operations (OFO). The Authority also rejected NAAE's contention that the RD erred in determining that Agriculture Specialists are not professional employees within the meaning of § 7103(a)(15) of the Federal Service Labor-Management Relations Statute (Statute).

      In its motion, NAAE states that it has appealed the Authority's denial of its application for review in Customs and Border Protection insofar as it concerns the unit status of Agriculture Specialists under § 7103(a)(15) to the United States Court of Appeals for the Ninth Circuit (court). In light of that appeal, NAAE requests that the Authority grant a stay of the RD's order directing an election in the unit found to be appropriate in Customs and Border Protection.

II.     Positions of the Parties

A.     NAAE's Request for a Stay

      NAAE states that its request is intended to preserve the right of Agriculture Specialists to vote for inclusion in a separate professional unit. NAAE argues that: (1) irreparable harm would befall NAAE and Agriculture Specialists if they are required to vote for representation in the non-professional unit; (2) there is a likelihood that NAAE will succeed on the merits of its appeal to the court; and (3) the stay would further the public interest.

      With respect to irreparable harm, NAAE contends that if the election is held as scheduled, Agriculture Specialists would be included in a non-professional unit represented by the American Federation of Government Employees (AFGE) or the National Treasury Employees Union and it will be impossible to restore the status quo ante if NAAE prevails on the merits on appeal. NAAE also contends that the quality of representation afforded Agriculture Specialists will decline because AFGE and NTEU have no experience addressing the specialized needs of those employees. Further, NAAE maintains that the loss of dues from Agriculture Specialists will decrease its resources and affect the representation it can provide to employees remaining in the unit that it represents.

      As to the likelihood of success on the merits of its appeal, NAAE asserts that the Authority's decision as to the unit status of Agriculture Specialists will be reversed under the applicable criteria of the Administrative Procedure Act (APA), 5 U.S.C. § 706. In this regard, NAAE maintains that the Authority erred by holding that certification of NAAE as the exclusive representative of a professional unit made up of employees now designated Agriculture Specialists did not constitute a determination that those employees are "professional' employees within the meaning of § 7103(a)(15) of the Statute. NAAE also contends that the Authority erred by not rejecting the RD's reliance on United States Army Safeguard Logistics Command, Huntsville, Ala., 2 A/SLMR 582 (1972) (Army Safeguard), particularly because in subsequent cases involving librarian positions the Authority concluded that incumbents of those positions were professional employees. NAAE asserts that, for these reasons, the Authority's decision is arbitrary, capricious, and a violation of law within the meaning of the APA.

      Finally, NAAE maintains that preserving the status quo pending the resolution of its appeal will injure no party or non-party to this case. Rather, according to NAAE, a stay will ensure the right of Agriculture Specialists under the Statute, as professional employees, to choose their exclusive representative and thereby to preserve the representation they have previously chosen and on which they have come to rely. NAAE also asserts that a stay would eliminate the need to re-run the election, at Government expense, should it prevail on the merits. NAAE contends that, for all these reasons, a stay would further the public interest.

B.     Customs and Border Protection's (CBP) Opposition  [n1] 

      CBP contends that in order to prevail on the merits of its appeal, NAAE must first establish that the court has jurisdiction. Citing § 7123(a) of the Statute, CBP maintains that the court has no jurisdiction over an appropriate unit determination made pursuant to § 7112 of the Statute. According to CBP, a determination as to whether employees are "professional employees" within the meaning of § 7103(a)(15) constitutes a determination of the bargaining unit status of those employees. CBP argues that, because a determination that Agriculture Specialists are not professional employees concerns [ v61 p547 ] their bargaining unit status, which is part and parcel of determining the unit in which they may appropriately be included, the court, under § 7123(a), does not have jurisdiction over the Authority's determination that Agriculture Specialists status are not professional employees.

      Further, CBP maintains that, even if the court determined that it has jurisdiction, NAAE would not succeed on the merits because the Authority's decision is not arbitrary, capricious or inconsistent with law within the meaning of the APA. In this regard, CBP contends that NAAE cites no precedent holding that the issuance of a certificate of representation constitutes a determination of bargaining unit status. Moreover, CBP asserts that NAAE : (1) never argued to the Authority that Army Safeguard was not good law; and (2) fails to demonstrate how the cases its cites would have changed the RD's decision.

      As to NAAE's claims of "irreparable harm," CBP contends that such harm must be actual, certain, imminent, and not theoretical. According to CBP, the harm alleged by NAAE does not meet that standard. CBP maintains, in this regard, that NAAE's claims as to the quality of representation that would be afforded Agriculture Specialists by AFGE or NTEU is speculative and unsupported by any evidence. As to loss of dues, CBP maintains that NAAE fails to show that such loss would be so great as to threaten its existence, citing Wisconsin Gas Co. v. Fed. Energy Regulatory Comm'n, et al., 758 F.2d 669, 674 (D.C. Cir. 1985) (Wisconsin Gas).

      With respect to the possibility of harm to others if the stay is granted, CBP points out that NAAE only states that maintaining the status quo will injure no party or non-party. CBP contends that such an unsupported statement is insufficient.

      Finally, concerning NAAE's arguments with respect to the public interest involved in the stay issue, CBP asserts that, although the costs of re-running an election would not be trivial, there are costs resulting from requiring CBP to continue its relationships with multiple bargaining units. In this regard, CBP maintains that the continued existence of those units has resulted in divisive labor relations that have undermined productivity. In addition, CBP contends that a stay undercuts the public interest in employees determining, without delay, their collective bargaining representatives.

III.     Analysis and Conclusions

      The moving party has the burden of establishing that a stay of an election is appropriate. See Dep't of the Army, United States Army Aviation Missile Command (AMCOM), Redstone Arsenal, Ala., 55 FLRA 640, 643 (1999) (Redstone Arsenal). In assessing the appropriateness of granting a stay, the Authority is "guided by the standards used by appellate courts to evaluate requests to stay district court orders." Id. Here, we apply the following standards, which are consistent with those applied by Federal appellate courts, [n2] and under which a stay is granted if all the standards are satisfied:

      1.      The likelihood or probability that the moving party will prevail on the merits;

      2.      The prospect of irreparable injury to the moving party if relief is denied;

      3.      The possibility of harm to other parties if relief is granted, balanced against the injury to the moving party if relief is denied;

      4.      The public interest.

Id. at 644.

      NAAE's motion for a stay fails under the first requirement outlined above because NAAE has not demonstrated that success of its court appeal is likely or probable. Specifically, § 7123(a)(2) of the Statute precludes judicial review of appropriate unit determinations under § 7112. ACT, Inc. v. FLRA, 283 F.3d 339, 341 (D.C. Cir. 2002) (ACT v. FLRA) (holding the APA does not apply where statutes preclude judicial review and thus APA does not provide court jurisdiction to review Authority unit determination). NAAE specifically states that its appeal to the court concerns only the Authority's determination that Agriculture Specialists are not professional employees within the meaning of § 7103(a)(15) of the Statute. Under § 7112(b)(5) of the Statute, a bargaining unit shall not "be determined to be appropriate . . . if it includes . . . both professional employees and other employees, unless a majority of the [ v61 p548 ] professional employees vote for inclusion in the unit[.]" In this regard, the Authority has held that the definition of "professional employee" in § 7103(a)(15) "`is relevant primarily to the determination of appropriate bargaining units under [§] 7112.'" IFPTE, Local 25, 13 FLRA 433, 438 (1983) (quoting H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 41 (1978)). Consequently, the Authority's determination that Agriculture Specialists are not professional employees constitutes a determination as to their status for inclusion in the bargaining unit whose representation is at issue in the election that NAAE seeks to stay. See AFGE, Local 3529, 57 FLRA 633, 636 (2001). Thus, under § 7123(a)(2), judicial review of the Authority's determination is not available.

      As to NAAE's contentions on the merits of the Authority's decision, its arguments with respect to the legal effect of a prior certification of exclusive representation are unsupported. NAAE cites no precedent, either from the public sector or the private sector that would substantiate its position. Its contentions as to the Authority's treatment of Army Safeguard are similarly unsupported. It is a "well-settled principle that the Authority examines the facts and circumstances of each case individually in determining whether a unit meets the [§] 7112(a) criteria." SSA, Dist. Office, Valdosta, Ga., 52 FLRA 1084, 1089 (1997). Moreover, "[t]he Authority has held that decisions regarding unit determinations must reflect the conditions of employment that existed at the time of the hearing[.]" United States Air Force, 82nd Training Wing, Sheppard AFB, Wichita Falls, Tex., 61 FLRA 443, 445 (2006). NAAE has not demonstrated that the legal principles that the RD drew from Army Safeguard, and on which the RD relied, are either erroneous or inapposite.

      As to the possibility of irreparable harm to NAAE or the Agriculture Specialists, NAAE's claims concerning the decline in the quality of representation that would result from Agriculture Specialists being included in a non-professional unit represented by AFGE and NTEU are completely speculative. NAAE's contentions as to the effect of the loss of dues are similarly speculative. NAAE provides no evidence as to the a