Union Challenges Labor Relations Board

By Joe Davidson
Wednesday, January 14, 2009

The National Labor Relations Board has problems with its labor relations.

In a case of "do as I say not as I do," the NLRB is refusing to obey a ruling by a sister agency that settles disputes between the federal government and unions representing federal employees.

The NLRB does the same thing, resolving labor and management disagreements, but for the private sector. Now, however, it is the NLRB that is facing an unfair labor practice charge.

It stems from NLRB's refusal to negotiate with a bargaining unit that combines employees from the two sides of the agency -- one side reports to the general counsel, the other to the board. That refusal disobeys a ruling by the Federal Labor Relations Authority.

"The NLRB still refuses to bargain with the NLRBU on the consolidated bargaining units," complained Eric Brooks, president of the National Labor Relations Board Union. "The labor law is not respected among the NLRB."

The union has picketed NLRB General Counsel Ronald Meisburg and called on him to resign if he won't obey the law.

It has been 19 months since the union won its case requiring the NLRB to negotiate with the consolidated unit. Meisburg, who declined to be interviewed, strongly disagrees with the authority's decision and wants to take the case to court. But because the authority's initial decision is not subject to direct judicial review, he's trying to get through the back door what he can't get through the front door.

A statement issued by Meisburg's office says "the only mechanism available to the general counsel to obtain judicial review of the FLRA's unit consolidation decision is to refuse to bargain with the NLRBU in the certified unit, as he has done, thereby drawing an unfair labor practice charge."

The union lodged that charge and the case went to an administrative law judge at the authority, who also ruled against the NLRB. The judge's decision is being appealed to the three-member (one seat is vacant) authority. That decision then could be appealed to the courts.

It's a legal fight that could last a long time.

For Meisburg, the dispute revolves around the fundamental issue of separation of powers within his agency and the independence of his office.

Under the legislation creating the NLRB, "the general counsel serves as an independent prosecutor of labor cases before the board, which serves as a 'court' to hear those cases," says the statement provided by the NLRB in lieu of an interview with Meisburg or his deputy.

"The FLRA decision would put the general counsel in the position of bargaining with the NLRBU [the union] regarding board support staff, and the board in the position of bargaining with the NLRBU regarding general counsel field office support staff and professionals, including line attorneys who prosecute cases before the board."

That "blurs the lines of authority," Meisburg said in a memo to employees, and "places the independence of the general counsel at risk."

He might soon have an opportunity to again defy the FLRA. It approved another consolidation of bargaining units, one of lawyers in Meisburg's office with another of lawyers reporting to the board, said Leslie Rossen, president of the National Labor Relations Board Professional Association, which represents agency lawyers.

She said Meisburg's office notified her that the agency also will refuse to bargain with the combined unit in the union.

No one said Meisburg lacks the right to continue his fight against the FLRA rulings, but by doing so he could put at risk the faith that outside unions have in his agency.

"We have an agency that is giving a road map to parties that want to violate the agency's own law," Brooks said. "If the agency won't honor the federal labor law, then can employees in the private sector count on the NLRB to defend their own rights?

"That's what I find particularly galling."

The NLRB's relations with labor also have suffered because of a new employee appraisal system that has led to a large number of grievances. Rossen said her members might normally submit two or three grievances a year, but the new appraisal system generated 19.

Black attorneys, particularly, "feel they are being targeted and encouraged to leave" with the appraisal system being used as the stick to push people out, she said.

The situation seems to be particularly bad on the board's side of the NLRB, where black attorneys have nearly disappeared in recent years as their number dropped from few to almost none. There were four black lawyers out of 73 in 2002, about 5 percent. In 2008, that fell to one out of 58, roughly 2 percent. In both years there was one Asian and one Latino lawyer.

NLRB officials said "we certainly deny any suggestion, to the extent it is being made, that attrition at the board has been affected in any way by unlawful discrimination."

Contact Joe Davidson at federaldiary@washpost.com.