United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 21, 2010 Decided July 23, 2010

No. 09-1119

NATIONAL LABOR RELATIONS BOARD,

PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT

NATIONAL LABOR RELATIONS BOARD UNION,

INTERVENOR

Consolidated with 09-1148

On Petition for Review and Cross-Application for 

Enforcement 

of an Order of the Federal Labor Relations Authority

Howard S. Scher, Attorney, U.S. Department of Justice, 

argued the cause for petitioner. With him on the briefs were 

William G. Kanter, Attorney, and Ronald E. Meisburg, 

General Counsel, National Labor Relations Board.

Rosa M. Koppel, Solicitor, Federal Labor Relations 

Authority, argued the cause for respondent. With her on the 
2

brief were William R. Tobey, Deputy Solicitor, and James F. 

Blandford, Attorney.

Before: GINSBURG, GARLAND and BROWN, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: The National Labor Relations 

Board petitions for review of an order of the Federal Labor 

Relations Authority holding the Board engaged in an unfair 

labor practice, in violation of the Federal Services LaborManagement Relations Statute, 5 U.S.C. § 7116(a)(5). The 

Authority cross-petitions for enforcement of its order. The 

Authority held the Board unlawfully refused to negotiate with 

the intervenor, the National Labor Relations Board Union, 

which the Authority had certified as the exclusive 

representative of a bargaining unit that included employees 

who report to the Board and employees who report to the 

General Counsel of the Board. The Board argues its refusal to 

bargain was not an unfair labor practice because the inclusion 

of Board-side and GC-side employees in a single bargaining 

unit conflicts with the separation of authority mandated by 

§ 3(d) of its charter, the National Labor Relations Act, 29 

U.S.C. § 153(d), by requiring the General Counsel to bargain 

jointly with the Board over his employees‘ conditions of 

employment. We hold the decision of the Authority conflicts 

with the Act, and accordingly grant the Board‘s petition for 

review and deny the Authority‘s cross-petition for 

enforcement of its order.

I. Background

The agency responsible for overseeing labor relations in 

the private sector is at loggerheads with the agency 
3

responsible for overseeing labor relations in the federal sector 

over — what else? — labor relations. Their disagreement 

arises from the interaction between the laws they respectively 

administer, the Act and the Statute. The Statute requires 

federal agencies to bargain with the representative of their 

employees in an ―appropriate unit‖ for that purpose. 

Meanwhile, the Act makes the General Counsel independent 

of the Board. We explain each regime to the extent relevant 

before turning to the Authority‘s treatment of the interaction 

between the two laws in this case. 

A. The Statute

The Statute provides a federal agency must ―negotiate in 

good faith‖ with its employees‘ representative over the

employees‘ ―conditions of employment.‖ 5 U.S.C. 

§§ 7102(2), 7116(a)(5). Should the employing agency and its

employees‘ representative fail to reach an agreement, the 

Federal Service Impasses Panel may prescribe one. See Nat’l 

Air Traffic Controllers Ass’n v. Fed. Serv. Impasses Panel, 

606 F.3d 780, 784 (D.C. Cir. 2010) (―the FSIP ... may 

ultimately  ̳take whatever action is necessary and not 

inconsistent with the Statute to resolve the impasse,‘ 

including binding arbitration‖ (quoting 5 U.S.C. 

§ 7119(c)(5)(B)(iii)).

Collective bargaining presupposes that certain employees 

are entitled to be represented as a group, or a ―bargaining 

unit‖ in the jargon of labor law, which raises the question who 

is to be in the unit. Under the Statute, it falls to the Authority

to determine whether ―the appropriate unit [with which an 

agency employer must negotiate] should be established on an 

agency, plant, installation, functional, or other basis.‖ 5 

U.S.C. § 7112. Once the Authority has delineated an 

appropriate unit, the employees in that unit may elect a 
4

representative to negotiate on their behalf. 5 U.S.C. 

§ 7111(a).

The Authority has recognized that its unit determination 

can intersect lines of supervisory authority within the 

employer agency. Just as all the employees in a bargaining 

unit must be represented by a single, exclusive representative 

for the purpose of collective bargaining, several otherwise 

distinct components of an agency must bargain as one if the 

bargaining unit includes employees from their respective 

domains. The Authority considers this effect upon the 

distribution of authority within the employing agency as one 

of several factors in determining whether an ―[appropriate 

unit] determination will ensure a clear and identifiable 

community of interest among the employees,‖ U.S. Dep’t of 

Justice, 17 F.L.R.A. 58, 62 (1985) (―the locus and scope of 

personnel and labor relations authority and functions‖ is one 

of the ―[p]rimary ... factors‖ considered ―in determining 

whether there [is] a community of interest‖), itself one of 

three statutory criteria for the appropriateness of a bargaining 

unit, 5 U.S.C. § 7112(a) (―The Authority ... shall determine 

any unit to be an appropriate unit only if the determination 

will ensure [1] a clear and identifiable community of interest 

among the employees in the unit and [2] will promote 

effective dealings with, and [3] efficiency of the operations of 

the agency involved‖).

The Authority considers the effect of a proposed unit

upon both day-to-day personnel management within the 

employing agency, see U.S. Dep’t of the Treasury, Internal 

Revenue Serv., 56 F.L.R.A. 486, *8 (2000) (considering 

―existing personnel and labor relations policies and practices 

and chains of authority‖ established by agency practice), and 

formal lines of authority within that agency as created by 

statute, see U.S. Dep’t of Defense, Nat’l Guard Bureau, 55 
5

F.L.R.A. 657, 661 (1999) (holding nationwide bargaining unit 

not appropriate in part because, ―[u]nder [law governing 

National Guard], general authority over employment is vested 

in state officials‖). The latter consideration is meant to ensure 

the Statute is not applied in such a way as to conflict with a 

congressional delegation of authority to a particular post or 

position within an agency. Id.

B. The Act

The Act divides responsibility over private-sector labor 

relations between the National Labor Relations Board and the 

General Counsel of the Board. The General Counsel has 

―final authority, on behalf of the Board, in respect of the 

[investigation and prosecution of unfair labor practice 

complaints],‖ 29 U.S.C. § 153(d), whereas the Board 

adjudicates those complaints. This bifurcated structure 

reflects the intent of the Congress ―to differentiate between 

the General Counsel‘s and the Board‘s  ̳final authority‘ along 

a prosecutorial versus adjudicative line.‖ NLRB v. United 

Food & Commercial Workers Union, Local 23, 484 U.S. 112, 

124 (1987). 

In addition to mandating a separation of functions 

between the Board and the General Counsel, the Act

specifically mandates a separation of authority over agency 

employees. Under the Act, the General Counsel 

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). 
6

C. Labor Relations at the Board

The employees of the Board have engaged in collective 

bargaining since before the enactment of the Statute and been 

subdivided for that purpose into six bargaining units 

separating employees based at headquarters from employees

in the regional offices, professional employees from nonprofessional employees, and Board-side employees from GCside employees. In 2005 the Union, which was already the 

exclusive bargaining representative of each separate unit, 

petitioned the Authority to consolidate four of the six units 

into one bargaining unit. As reflected in the following table, 

the consolidated unit would include all employees of the 

Board except professional employees based at headquarters. 

Employees Before After

Board-side

Headquarters-based

Non-professional

Separate 

Bargaining 

Unit

Single Bargaining 

Unit

GC-side

Headquarters-based

Non-professional

Separate 

Bargaining 

Unit

GC-side

Regional

Non-professional

Separate 

Bargaining 

Unit

GC-side

Regional

Professional

Separate 

Bargaining 

Unit
7

In 2006 a Regional Director of the Authority granted the 

Union‘s request over the objection of the Board, which argued 

consolidation would undermine the independent supervisory 

authority granted the General Counsel in § 3(d) by requiring 

the General Counsel to bargain jointly with the Board over his 

employees‘ conditions of employment. The Board applied to 

the Authority for review of the Regional Director‘s decision,

and the Authority granted that application, noting the 

―absence of precedent‖ about ―whether the statutory authority 

provided to the Agency‘s GC in § 3(d) precludes GC and 

Board employees from being included in the same bargaining 

unit.‖ In 2007 the Authority found no conflict and affirmed

the Regional Director‘s decision to consolidate the units, 

holding, inter alia, the history of cooperation between the 

Board and the General Counsel in labor relations undercut the 

Board‘s argument that § 3(d) precluded consolidation. Nat’l

Labor Relations Bd., 62 F.L.R.A. 25 (2007). Barred under 5 

U.S.C. § 7123(a)(2) from seeking judicial review of the 

Authority‘s unit determination, the Board followed the only 

path open to it, as discussed in Ass’n of Civilian Technicians 

v. FLRA, 283 F.3d 339, 342 (D.C. Cir. 2002), ―refusing to 

bargain, drawing an unfair labor practice charge, and 

appealing that charge to the Authority and then to a court of 

appeals.‖ Id. at 343.

II. Analysis

We review the Authority‘s decision holding the Board

engaged in an unfair labor practice only ―to determine 

whether it is  ̳arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.‘‖ Nat’l Ass’n of Gov’t

Employees v. FLRA, 363 F.3d 468, 474–75 (D.C. Cir. 2004) 

(quoting 5 U.S.C. § 706(2)(a)). The issue in this case is solely 

one of accordance with law.
8

The Board argues its refusal to negotiate with the Union 

with respect to the consolidated unit was not an unfair labor 

practice because the unit was defined in violation of § 3(d) of 

the Act. According to the Board, (1) that section ―requires the 

General Counsel to have independent authority over the 

employees it supervises, which includes labor relations,‖ and 

(2) the inclusion of GC-side and Board-side employees in a 

single bargaining unit deprives the General Counsel of his

statutory authority by forcing him to negotiate over his 

employees‘ conditions of employment jointly with the Board. 

We first explain why we agree with the Board on both points, 

then turn to the Union‘s and the Authority‘s suggestion that 

the appropriate unit determination is lawful regardless

whether it conflicts with § 3(d) because the Statute supersedes

the Act to the extent the two conflict.

A. Independent Authority of the GC 

The parties dispute at some length whether § 3(d) 

mandates a ―complete separation‖ of the Board and the 

General Counsel. The Board points to the instruction in § 

3(d) that ―the General Counsel shall exercise general 

supervision over all attorneys employed by the Board,‖ and 

argues the Act mandates a ―clear division of authority over 

NLRB personnel into two separate and independent spheres, 

one headed by the General Counsel and one by the Board.‖ 

The Authority counters with a different clause in § 3(d) that 

grants the General Counsel ―final authority, on behalf of the 

Board, in respect of the [investigation and prosecution of 

unfair labor practice complaints]‖; it argues the latter clause

shows the mandated separation ―is limited to ... investigative 

and prosecutorial functions.‖ 
9

The Authority also points out that under § 4(a) of the Act, 

29 U.S.C. § 154(a), the Board is authorized to appoint 

attorneys, a grant of authority it argues is inconsistent with the 

Board‘s ―complete separation‖ theory. Each agency claims

support for its position in the same bit of legislative history, a 

passage in the Conference Report explaining:

[The General Counsel] is to have the final authority to 

act in the name of, but independently of any direction, 

control, or review by, the Board in respect of [the 

investigation and prosecution of unfair labor practice 

complaints]. 

H.R. Rep. No. 80-510, 541 (1947). Finally, the parties 

dispute whether the Board‘s interpretation of the Act is 

entitled to deference. 

We need not resolve whether § 3(d) mandates ―complete 

separation,‖ as the Board claims and the Authority denies.

The Board‘s argument on this front requires us to decide only

whether § 3(d), in providing the General Counsel ―shall 

exercise general supervision‖ over all GC-side attorneys, 

makes the General Counsel independent of the Board with 

respect to the ―conditions of employment‖ that are subject to 

collective bargaining under § 7102(2) of the Statute. We hold 

it does. 

Whatever the precise meaning of ―general supervision,‖ 

the term clearly contemplates authority over some conditions 

of employment — such as employee grievance procedures 

and whether an attorney may work at home — that are also 

mandatory subjects of bargaining under the Statute, 5 U.S.C. 

§§ 7102(2), 7116(a)(5). The Authority conceded as much at 

oral argument. That is sufficient to establish that the General 

Counsel‘s statutorily-mandated supervisory independence is 
10

implicated by the Authority‘s unit determination. We turn, 

then, to whether that unit determination, by combining Boardside and GC-side employees in the same unit, impermissibly 

interferes with the General Counsel‘s independence.

 

B. Effect of Consolidation

The Board argues that because, under the Authority‘s unit 

determination, the General Counsel and the Board will be 

forced ―to negotiate one contract together,‖ ―the General 

Counsel will need the consent of the Board in exercising his 

supervisory authority‖ over his employees. That much is 

clear. Whether the Board and the GC would both need to sign

a collective bargaining agreement or whether the Board alone 

could make such an agreement binding upon the GC, remains 

unclear. The Authority‘s decision is silent on this matter, its 

briefs offered no clarification, nor did counsel when asked at 

oral argument. In either case, however, the General Counsel

would need the Board‘s consent in order to negotiate an 

agreement with the representative of his employees. 

The Authority argues its determination is nonetheless 

consistent with § 3(d) because the Board, in negotiating with 

the Union, must and will respect the General Counsel‘s 

independent authority under § 3(d). It points out that for 

decades the General Counsel and the Board have engaged in 

―coordinated bargaining‖ over labor issues, which has usually 

resulted in similar or identical terms and working conditions

for Board-side and GC-side employees. In light of this 

history of cooperation, the Authority reasons, it is 

reasonable to assume, as did the Authority [in making 

its appropriate unit determination], that future 

incumbents would not ignore the limitations of § 3(d) 
11

and usurp control of the working conditions of 

employees of the other components. 

The Authority can ―assume‖ but it cannot provide any

assurance the Board and the General Counsel will be able to 

treat each labor issue as either a matter entirely of Board-side 

or of GC-side concern or agree upon issues of common 

concern;

*

nor is there good reason to assume the history of 

coordination between the two will survive consolidation of 

their employees into a single bargaining unit. Good fences 

make good neighbors, as Robert Frost observed, but the 

Authority proposes to take down the fence. Neither we nor 

the Authority can blithely disregard the potential for discord 

in what have hitherto been viable collective bargaining

relationships. 

Significantly, the Authority offers no indication how a

disagreement between the Board and the General Counsel

could be resolved were one to develop. We suppose the 

General Counsel could force an impasse and elicit an unfair 

labor practice complaint that he is refusing to bargain, 

maintain his position of legal right through the various levels 

of review before the Authority, and eventually the court of 

appeals, thereby ultimately safeguarding his authority against 

intrusion. Empowering the Board to put the General Counsel

to that considerable burden, however, in the sensitive context 

of collective bargaining is itself an undue interference with 

his supervisory authority. We conclude, therefore, that by 

subjecting the General Counsel‘s exercise of his supervisory 

 

* That the Authority can muster no precedent to support its 

assumption is not surprising; the issue is sui generis because, as the 

Board argues and the Authority conceded at oral argument, the 

statutory separation mandated by § 3(d) is unique. 
12

authority to the consent of the Board, the Authority‘s unit 

determination conflicts with § 3(d) of the Act.

C. The Statute and the Act

The Union argues that, to the extent there is any conflict 

between the two, the Statute amends the Act by implication. 

But see Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 

134 (1974) (―A new statute will not be read as wholly or even 

partially amending a prior one unless there exists a  ̳positive 

repugnancy‘ between the provisions of the new and those of 

the old that cannot be reconciled‖ (internal quotation marks 

deleted)). At oral argument the Authority for the first time

adopted this argument. As support the Union and the 

Authority point to § 7112(c) of the Statute, which section

prohibits employees of an agency that administers a labor 

relations law (e.g., the Board) from being represented by a 

union that also represents employees to whom the Statute 

applies. This is evidence, they say, the Congress had the Act 

in mind when it wrote the Statute, and therefore must have 

intended the Statute to supersede the Act to the extent they 

conflict. 

We need not determine whether the Statute amends the 

Act by implication because, in the decision under review, the 

FLRA claimed to have interpreted ―both statutes so that they 

do not conflict‖ and affirmed the Regional Director‘s 

conclusion that ―§ 3(d) does not preclude the consolidation.‖ 

62 F.L.R.A. at *13–14. Although ―the court [will not] upset a 

decision because of errors that are not material,‖ Greater 

Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 

1970), the Authority‘s erroneous interpretation of the Act 

plainly was material to its holding; therefore we must vacate 

the order under review. 
13

In making unit determinations the Authority routinely 

takes into account delegations of responsibility prescribed by 

the Congress. See U.S. Dep’t of Def., Nat’l Guard Bureau, 55 

F.L.R.A. 657, 661 (1999). Had the Authority correctly 

interpreted the Act it might well have held the unit requested 

by the Union is not appropriate under the Statute for the 

reason it gave in the National Guard case, to wit, the 

―statutory scheme is not workable if employees do not have a 

right to negotiate with the same officials who exercise 

authority over‖ their conditions of employment. Id. at 661. 

That, however, is a matter for the Authority, not the court, to 

address in the first instance.

III. Conclusion

The Authority relied upon an incorrect interpretation of 

§ 3(d) in granting the Union‘s proposal to consolidate Boardside and GC-side employees into a single bargaining unit. In 

consequence, it erred in holding the Board engaged in an 

unfair labor practice when it refused to bargain with the 

Union over the conditions of employment in that unit. 

Accordingly, the petition for review is granted and the crosspetition for enforcement is denied. 

So ordered.