National Association of Agriculture Employees v. Federal Labor Relations Authority, and Customs and Border Protection, Intervenor
Docket: 06-71671
Court: Court of Appeals for the Ninth Circuit; January 10, 2007; Federal Appellate Court
The Ninth Circuit Court addressed a petition by the National Association of Agriculture Employees (NAAE) against the Federal Labor Relations Authority (FLRA) regarding a determination that certain government employees, specifically federal agricultural inspectors, are not classified as 'professional employees' under the Federal Service Labor Management Relations Statute (FSLMRS). This classification is significant because it affects the inspectors' ability to vote into a professionals-only collective bargaining unit. The court concluded that the FLRA's finding on professional status was part of an appropriate collective bargaining unit determination, which is not subject to judicial review as per 5 U.S.C. § 7123(a)(2).
The factual background includes the restructuring of several agencies into the Department of Homeland Security (DHS) in 2002, which led to the formation of Customs and Border Protection (CBP). This agency absorbed approximately 1,500 former Plant Protection and Quarantine (PPQ) officers, who were reclassified as 'agriculture specialists' but retained their previous duties related to preventing agricultural pests and diseases. Prior to the formation of CBP, these employees were part of a professional bargaining unit represented by NAAE. Following this restructuring, CBP sought to clarify the bargaining unit structure, proposing a new arrangement that included a 'wall-to-wall' unit for all employees, with the potential for separating professional and nonprofessional employees based on voting outcomes. The court dismissed the case due to lack of jurisdiction over the FLRA's unit determination.
NAAE opposed CBP's proposed wall-to-wall bargaining unit, as it included employees represented by NAAE. In response, NAAE filed a petition for a separate unit for agricultural specialists, whom the FLRA had classified as professionals. CBP countered that NAAE's proposed unit was inappropriate and that agricultural specialists did not meet the professional employee criteria under the FSLMRS. The FLRA referred the matter to a regional director, who determined that CBP's proposed units were appropriate, rejected NAAE's unit proposal, and classified agricultural specialists as non-professionals. An election was scheduled for employees in the new CBP units to select a union representative and for professional employees to decide on inclusion in the wall-to-wall unit. NAAE appealed to the FLRA, which upheld the regional director's decision. Subsequently, NAAE filed a timely petition for review in court. While the review was pending, NAAE requested the FLRA to stay the election, but the FLRA denied this, citing NAAE's low likelihood of success on appeal and asserting that the court lacked jurisdiction. The court conducts a de novo review of its subject matter jurisdiction and does not defer to the FLRA’s interpretation regarding jurisdiction. The FSLMRS grants federal circuit courts jurisdiction to review FLRA final orders, with exceptions, one of which pertains to appropriate unit determinations under section 7112. The court concurs with the FLRA that the order in question involves an appropriate unit determination, thus confirming a lack of jurisdiction under 7123(a)(2).
To determine whether the FLRA's ruling that agricultural specialists are not professionals constitutes an 'order under section 7112' regarding appropriate unit determination, the plain language of the statute is paramount, with courts only looking beyond it if its application yields unreasonable results. Section 7112 outlines two key considerations for assessing unit appropriateness:
1. Under section 7112(a), the FLRA must evaluate if the proposed unit fosters a 'clear and identifiable community of interest' and enhances 'effective dealings' and operational efficiency for the agency. All three specified criteria must be satisfied for a unit to be deemed appropriate.
2. Section 7112(b) prohibits the designation of a unit as appropriate if it includes certain excluded employee categories, including managers and confidential employees. It conditionally prohibits the combination of professional and nonprofessional employees unless a majority of professionals consent to their inclusion.
Professional employees, as defined in section 7103(a)(15), must meet four criteria: advanced education, discretionary application, intellectual predominance, and nonstandardization. They are generally presumed to belong to their own unit, a presumption that can only be overturned if they vote to join with nonprofessionals.
The FLRA's determination of professional status is crucial for appropriate unit determinations, as mandated by section 7112(b)(5), which requires an opt-in vote for professionals to be included with nonprofessionals. If professional status is disputed during unit determination proceedings, the FLRA must apply the four criteria from section 7103(a)(15) to resolve the issue. Failure to do so would violate the statute and could improperly combine professionals with nonprofessionals, thereby making the FLRA's findings on employee status integral to an 'order under section 7112.'
A dispute arose from CBP's request for unit clarification under 7111, seeking FLRA approval for a new bargaining unit structure that redesignated agricultural specialists as nonprofessionals. This change eliminated the specialists' right to vote on their inclusion in the bargaining unit. NAAE contested this redesignation, challenging the appropriateness of CBP's proposed unit under 5 U.S.C. 7112(b). NAAE's appeal to reverse the FLRA's professional status determination was deemed outside the jurisdiction, as 7123(a)(1) prohibits such reversals.
NAAE argued that the FLRA's ruling on professional status was separate from the appropriate unit determination and linked to the right of professionals to vote on their unit assignment. While acknowledging that this voting right exists for professionals, it was determined that the question of whether agricultural specialists qualify as professionals was intrinsically connected to the appropriate unit determination, which the FLRA is not subject to review.
NAAE further contended that jurisdiction existed due to CBP's petition being filed under 7111 instead of 7112. However, it was clarified that petitions under 7111 typically lead to an appropriate unit determination under 7112, and in this case, the FLRA did indeed make such a determination. Thus, the criteria regarding professional status applied by the FLRA fell within its appropriate unit determination scope.
Therefore, it was concluded that the FLRA’s designation of agricultural specialists as nonprofessionals is not subject to judicial review under Section 7123(a)(2), resulting in a dismissal for lack of jurisdiction.
The Honorable John R. Gibson serves as the Senior United States Circuit Judge for the Eighth Circuit. All statutory references pertain to Title 5 of the United States Code unless noted otherwise. The National Association of Agricultural Employees (NAAE) submitted a second petition for a unit of nonprofessional PPQ employees, specifically agricultural technicians, which was denied by the Federal Labor Relations Authority (FLRA). NAAE does not contest that denial. The term "professional" appears in various sections of the United States Code, including the National Labor Relations Act. NAAE references FLRA decisions where it argues that the FLRA improperly assessed professional status outside of the appropriate unit determination, but the court does not need to validate NAAE's interpretation as the primary issue is whether FLRA's professional status finding is part of the unit determination. Should it be clear that agricultural specialists are professionals and the FLRA denied their voting rights, NAAE could potentially challenge this in a federal district court under the Leedom doctrine, which allows for judicial review when the FLRA exceeds its authority. However, NAAE does not argue that the Leedom doctrine applies in this case. The court also refrains from addressing whether the FLRA's unit determination could be indirectly reviewed through an appeal stemming from an unfair labor practice charge.
