Kathleen C. Jeffries (State Bar #110362)

SCOPELITIS, GARVIN, LIGHT & HANSON, LLP

790 East Colorado Boulevard, 9th Floor

Pasadena, California 91101

Telephone:  (626) 795-4700/ Facsimile:  (626) 795-4790

Kim D. Mann

SCOPELITIS, GARVIN, LIGHT & HANSON, P.C.

1850 M Street, N.W., Suite 280

Washington, DC 20036

Telephone:  (202) 783-9222/ Facsimile:  (202) 783-9230

Attorneys for Petitioner

IN THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIONAL ASSOCIATION OF                )

AGRICULTURE EMPLOYEES,                 )  Case No. _____________________

                                                                   )

                             Petitioner,                       )

                                                                   )

                   v.                                             )  MOTION FOR STAY OF

                                                                   )  ENFORCEMENT OF FLRA

FEDERAL LABOR RELATIONS               )  DECISION PENDING REVIEW

AUTHORITY,                                            ) 

                                                                   )  Urgent Motion:  Action Necessary

                             Respondent.                             )  by May 8, 2006

Urgent Motion Under Circuit Rule 27-3(b)

IN THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIONAL ASSOCIATION OF                )

AGRICULTURE EMPLOYEES,                 )  Case No. _____________________

                                                                   )

                             Petitioner,                       )

                                                                   )

                   v.                                             )  MOTION FOR STAY OF

                                                                   )  ENFORCEMENT OF FLRA

FEDERAL LABOR RELATIONS               )  DECISION PENDING REVIEW

AUTHORITY,                                            ) 

                                                                   )  Urgent Motion:  Action Necessary

                             Respondent.                             )  by May 8, 2006

          Petitioner, National Association of Agriculture Employees (“NAAE”), by counsel and pursuant to F.R.A.P. 18 and 5 U.S.C. 705, requests a stay of the representation election directed by the Federal Labor Relations Authority (“FLRA”) in its February 3, 2006 Decision Denying Application for Review (“Decision”), 61 FLRA 485 (2006), pending judicial review by this Court.  NAAE requests this stay because the FLRA erroneously reclassified 847 workers represented for the last 33 years by NAAE, deeming the workers “non-professionals” and stripping the workers of NAAE representation.

A.      Introduction and Background

1.                 On October 7, 2005, the Regional Director for the FLRA’s Washington regional office issued a Decision and Order Certifying Border Patrol Unit and Directing Election Among All Other Employees (“RD Order”).  The RD Order, a copy of which is attached as Exhibit A, directed an election for employees of the U.S. Department of Homeland Security Bureau of Customs and Border Protection (“CBP”) to determine their exclusive bargaining representative.

2.                 NAAE filed a timely Application for Review with the FLRA showing that the RD’s Order erroneously stripped a group of CBP employees known as “Agriculture Specialists” of their statutory right to be placed in a separate unit and select separate representation as professionals despite the FLRA’s (and its predecessor’s) consistent recognition of the Agriculture Specialists as statutorily-defined “professional employees” since at least April 21, 1976. 

3.                 On February 3, 2006, the FLRA issued its Decision, a copy of which is attached as Exhibit B, and affirmed the RD Order.

4.                 NAAE has now filed its timely Petition for Review seeking to reverse the Decision and thereby reinstate the Agriculture Specialists’ status as professional employees statutorily entitled to decide whether to remain separate from non-professional employees in CBP, change their bargaining representative, or maintain their longstanding relationship with NAAE.

5.                 This controversy has its origin in the Homeland Security Act of 2002, Pub. L. No. 107-296, pursuant to which more than 30,000 employees and their functions were transferred into CBP on March 1, 2003.  Included within the transfer were certain employees now known as Agriculture Specialists and Agriculture Technicians formerly employed by the Agriculture Department’s Animal and Plant Health Inspection Service in its Plant Protection and Quarantine Unit (“APHIS/PPQ”).  There are now approximately 847 Agriculture Specialists (formerly known as PPQ Officers) employed by CBP who are the same employees NAAE has always represented as professional employees since its inception as a federal-sector union approximately 30 years ago.[1]  The other 20,000 non-Border Patrol employees transferred to CBP are and have been represented by two large federal-sector unions.[2] 61 FLRA at 486.  See Declaration of Michael E. Randall (“Randall Decl.”) attached as Exhibit C.

6.                 In May, 2004, CBP filed a representation petition with the FLRA seeking to include all of its new employees, except Border Patrol workers, in a single bargaining unit represented by only one union.  NAAE filed its own petition, arguing that the former APHIS/PPQ employees should be treated as a second separate appropriate unit for union representational purposes.  CBP opposed NAAE’s petition, and, on the eve of hearings before the Regional Director, added a last-minute request for a ruling that the Agriculture Specialists were no longer “professional employees.”  61 FLRA at 486 and n. 3.

7.                 At the conclusion of all hearings, the Regional Director made three distinct rulings, each of which has been upheld by the FLRA in its Decision:

a.          Approximately 9,200 Border Patrol employees now employed by the CBP were certified as a separate bargaining unit that will retain its former federal-sector union as its exclusive bargaining representative;

b.         The remaining employees transferred to CBP (approximately 21,000 in number) have been combined into a single bargaining unit, and an election has been ordered to determine the exclusive representative of those employees, subject to the proviso that professional employees will be permitted to determine whether to maintain their own separate bargaining unit pursuant to 5 U.S.C. 7112(b)(5); and

c.         The Agriculture Specialists formerly represented by NAAE as “professional employees” were reclassified as non-professional employees who will not be permitted to choose separate bargaining unit representation pursuant to 5 U.S.C. 7112(b)(5).

8.                 As pertinent to this proceeding, the Agriculture Specialists – who constitute the majority (65%) of non-Border Patrol professional employees working for CBP – will be denied their statutory right to select representation as professionals separate from the 20,000 non-professional employees of CBP, even though they have always been represented by NAAE as professional employees for the last 33 years.

B.      Jurisdiction

9.                 This Court has jurisdiction over NAAE’s Petition for Review pursuant to 5 U.S.C. 706, 7123(a).  Under 5 U.S.C. 7123(a), any person aggrieved by a final order of the FLRA may seek judicial review in the U.S. Court of Appeals in the circuit in which the person resides or transacts business.  Because NAAE is headquartered in Honolulu, HI and has active branches in California, Randall Decl. 2, its Petition for Review is appropriately filed in this Court.

10.             Although 5 U.S.C. 7123(a)(2) excepts from judicial review FLRA appropriate unit determinations under 5 U.S.C. 7112, NAAE does not seek to overturn the fact-sensitive and policy-oriented unit-appropriate determination of the FLRA to combine all non-Border Patrol CBP workers into a single bargaining unit for purposes of union representation.

11.             Rather, NAAE seeks to overturn the FLRA’s reclassification of the Agriculture Specialists as non-professionals.  That separate ruling denies those employees the statutory right to make their own “appropriate unit determination” – something not subject to policy-making considerations of the FLRA – pursuant to 5 U.S.C. 7112(b)(5).  While the FLRA possesses the non-reviewable discretion to combine CBP employees into a single bargaining unit, professional employees are statutorily entitled to separate themselves from that unit as a matter of law, and it is the FLRA’s denial of that right to Agriculture Specialists that is the subject of NAAE’s Petition for Review.

12.             In Eisinger v. FLRA,  this Court ruled that access to judicial review should be limited only if there is “‘clear and convincing evidence of a contrary legislative intent.’”  218 F.3d 1097, 1103 (9th Cir. 2000) (quoting NTEU v. FLRA, 112 F.3d 402, 404-05 (9th Cir. 1997)).  In Eisinger, the Court interpreted 5 U.S.C. 7123(a)(2) as permitting review when the FLRA refused to make an appropriate unit determination on the basis of the petitioner’s standing.  The Court rejected a broad limitation of judicial review, holding that 5 U.S.C. 7123(a) “does not by implication require excluding anything.  Its plain language explicitly includes everything within our judicial review, with two well-defined exceptions,” neither of which applies here.  Id. at 1102 (emphasis in original).

13.             As in Eisinger, this Court is not being asked to review the merits of the FLRA’s decision to combine all non-Border Patrol CBP employees into a single appropriate unit.  Quite simply, a determination of whether Agriculture Specialists are or are not “professional employees” was not a necessary finding the FLRA was required to make in making its appropriate unit determination,[3] and, indeed, the history and purpose behind the “professional employee” designation demonstrates its distinct and separate function. 

14.             Although judicial decisions interpreting the professional employee provisions of the Civil Service Reform Act (“CSRA”) are virtually nonexistent, the CSRA, as a whole, is patterned after the National Labor Relations Act (“NLRA”).[4]  This Court may look for guidance, therefore, in the NLRA.  It was amended in 1947 to provide professional employees an opportunity to participate in collective bargaining yet recognize that professional employees have legitimate interests and characteristics that distinguish them from clerical and industrial workers.  S. Rep. No. 105 at 11, reprinted in 1 NLRB Legislative History of the Labor Management Relations Act 307, 327, 417 (1947); 2 NLRB Legislative History of the Labor Management Relations Act 1009 (1947).  Moreover, Congress was deeply concerned with forcing discrete minorities such as professional employees into a collective bargaining arrangement against their will.  NLRB v. St. Luke’s Hospital Center, 551 F.2d 476, 483 (2d. Cir. 1976).

15.             Such concerns apply with equal force in this case, and judicial review of the ruling reclassifying the Agriculture Specialists is therefore proper.  In the interim, this Court has the power to issue a stay.  5 U.S.C. 705, 7112(c) and F.R.A.P. 18.  Under well-established principles, the stay will issue if:  (a) irreparable injury will result without the issuance of temporary relief; (b) NAAE stands a strong likelihood of success on the merits; (c) no other person will be harmed by a stay; and (d) a stay is in the public’s interest.  See In re Letters Rogatory from the Tokyo District, 539 F.2d 1216, 1220 (9th Cir. 1976).  As shown below, each of these factors weighs in favor of a stay pending review on the merits in this case.

C.      NAAE Requested A Stay With The FLRA

16.             As required by F.R.A.P. 18(a)(1), on March 28, 2006, the NAAE requested the FLRA to stay the effectiveness of its Decision pending this Court’s review.  A copy of that Motion for Stay is attached as Exhibit D

17.             As of April 3, 2006, the FLRA has not acted, and it is impractical to wait for a ruling because ballots for the upcoming election are scheduled for mailing on May 9, 2006.

D.      Irreparable Injury Will Result Without A Stay

18.             A most important factor in the stay analysis, indeed the only factor expressly identified in 5 U.S.C. 705, involves the specter of irreparable injury to be suffered by the moving party if the status quo is upset.  Irreparable injury has been defined in this Court as “an injury that is actual or imminent, not conjectural or hypothetical.”  Clark v. City of Lakewood, 259 F3d 996, 1007 (9th Cir. 2001) (finding irreparable injury in an ordinance that effectively forced a business’s closure).  See also Natural Resources Defense Council v. U.S. Forest Serv., 421 F.3d 797, 804 (9th Cir. 2005) (noting irreparable injury in the proposed construction of a road that would facilitate a disputed timber sale).

19.             In the labor context, irreparable injury occurs when the moving party, whose only relief for labor law violations is limited to the reach of the appropriate executive agency, is left without a means of redress.  Specifically, the Court “must take into account the probability that declining to issue the injunction will permit the [alleged statutory violation] to reach fruition and thereby render meaningless the Board’s remedial authority.”  Miller v. California Pac. Med. Ctr., 19 F.3d 449, 460 (9th Cir. 1994).[5]  Here, once an election occurs, the FLRA and the Court will be powerless to provide a remedy to NAAE when the FLRA’s professional employee determination is found to be erroneous.

20.             As it now stands, the election for the 20,132 non-Border Patrol workers employed by CBP is set, scheduled to begin May 9, 2006.  NAAE, however, is not a part of the election, and it will have no say in the election certification process.  Thus, after an election takes place, NAAE will have no realistic ability to challenge the outcome of the election in any way.[6]

21.             At stake in this proceeding is the federal employees’ right of self-determination.  Congress, in 5 U.S.C. 7112 (b)(5), grants “professional employees,” and only “professional employees,” the unqualified right to decide for themselves through a democratic process whether they wish to be included in a unit with non-professional employees, and, if not, which union, if any, should be their representative.  The statute gives the FLRA no say in the matter: a simple majority vote of the professional employees rules.  Id.  Without a stay, the FLRA will cast 847 Agriculture Specialists into a unit of more than 20,000 non-professional employees regardless of their desires.

22.             The Agriculture Specialists as PPQ Officers have already exercised their right of self-determination.  They chose separation from non-professional employees and chose NAAE to represent them, and the FLRA issued NAAE a Certificate of Representation (“Certificate”) designating NAAE as their exclusive representative.  FLRA Ex. 1(a), Ex. 5.[7]  Depriving them of NAAE representation now without affording them the right to decide for themselves is contrary to well-settled public-sector labor law.  See Defense Logistics Agency, Defense Supply Center Columbus, OH, 53 FLRA 1114, 1121-22 (1998) (“reluctance to short-circuit employee self-determination is enhanced where the employees have, in fact, already exercised their right to self-determination and chosen a [separate] representative”). 

23.               With the loss of bargaining representative choice will come the immediate loss of union representation from NAAE and the unique advantages that representation brings:  a customized collective bargaining agreement; local negotiations over local issues; local and national representation from peers, fellow Agriculture Specialists, who understand and share the same Agriculture Mission and employee needs; litigation support for pending proceedings pressing issues meaningful to their conditions of employment; and a strong voice in and control of their interaction with CBP management.  These advantages will disappear because neither AFGE nor NTEU, the only two unions on the ballot, is equipped to provide this level of specialized representation.  Randall Decl. 11-18.

24.             The inability of the Court to restore effective self-determination power to this group of 847 Agriculture Specialists in the event NAAE ultimately prevails many months after the conclusion of the May 9, 2006 election magnifies the irreparable harm.  Following that election, NAAE’s Agriculture Specialists will become inseparably a part of the FLRA-determined “appropriate unit” comprised of 20,132 CBP employees, represented by either AFGE or NTEU.  Neither the Court nor the FLRA has the apparent authority, after the fact, to undo this marriage and sever the Agriculture Specialists from this “appropriate unit.”  The FLRA’s doctrine of severance requires a showing of “unusual circumstances” under 5 U.S.C.  7111(b)(2) by “any person” seeking an election, in order to sever the Agriculture Specialists from the unit of non-professional employees.  See Nat’l Ass’n of Gov’t Employees/Service Employees International Union, Local 5000, 52 FLRA 1068, 1074 (1997) (“NAGE/SEIU”).

25.             While the FLRA has never defined “unusual circumstances,” it is clear that neither agreement between the parties nor lack of opposition to severance is sufficient.  NAGE/SEIU at 1073-74.  Unusual circumstances justifying severance arise, for example, when the incumbent union has abandoned its representational duties.  See Library of Congress 16 FLRA 429, 431 (1984); Dep’t of Army, HQ Fort Dix, Fort Dix, NJ, 53 FLRA 287, 294 (1997).

26.             Assuming arguendo the Court’s inherent powers extend to mandating the FLRA to sever the Agriculture Specialists from the appropriate unit of 20,132 CBP employees and run a second election just for professional employees, the effect of the first election on Agriculture Specialists and the passage of time will make it impossible to hold that election under the same or similar circumstances existing at the date of the first election, May 9, 2006.  In effect, the Agriculture Specialists will have severed their ties to NAAE and assimilated themselves into AFGE or NTEU.  A significant number will not, in a subsequent election, unravel that relationship with their new union.  Randall Decl. 22; Scaffa Decl. 8, 9.

27.             NAAE and its remaining 267 non-CBP dues-paying members will also suffer irreparable harm if the election is not stayed because NAAE will be unable to provide certain basic services.  Randall Decl. 20.[8]  Once the FLRA certifies AFGE or NTEU to represent CBP at the close of the May 9, 2006 election, CBP must immediately cease withholding union dues from pay checks of all Agriculture Specialists and Technicians, 5 U.S.C.  9701.56(b), and stop transferring these dues to NAAE.  This loss of dues represents 68% of NAAE’s total operating revenues, 80% of which (55% of the total) NAAE attributes to dues allocations from CBP Agriculture Specialists.  Randall Decl. 19.  NAAE will be forced to cut back essential services to its remaining members, such as representation in grievance and ULP proceedings and negotiations at the bargaining table with APHIS/PPQ management.  Id.. 20. 

28.             NAAE has no adequate remedy at law to recover this lost revenue or blunt the effect of this loss on its APHIS/PPQ bargaining unit.  The lost revenue is forever lost.  The doctrine of sovereign immunity and an extant Memorandum of Understanding, binding on NAAE, protect CBP from any legal obligation to pay NAAE an amount equal to the lost dues should NAAE prevail.  United States v. Testan, 424 U.S. 392, 402 (1976); Randall Decl. 20, App. B.  Congress has not expressly waived CBP’s sovereign immunity in these circumstances.  See Lane v. Pena, 518 U.S. 187, 192 (1996).  There is no mechanism available to NAAE to retroactively impose upon former members of NAAE an obligation to pay back dues not withheld from their paychecks.  Randall Decl. 9.

E.      NAAE Stands A Strong Likelihood Of Success On the Merits

29.             NAAE’s likelihood of success on the merits is a factor to be considered in determining whether a stay should be granted.  Washington Area Metro Transit v. Holiday Tours, 559 F.2d 841, 843 (D.C. Cir. 1977).  When, as here, the irreparable harm that a party stands to suffer is great, the requisite showing of likelihood of success on the merits is significantly reduced.  Earth Island Institute v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003); Miller, 19 F.3d at 460.  Despite the significant reduction of NAAE’s burden, NAAE nevertheless possesses a strong likelihood of success in this Court. 

30.             In reviewing the FLRA’s Decision, this Court must conduct a careful, searching, yet narrow analysis.  Marsh v. Oregon National Resources Council, 490 U.S. 360, 378 (1989).  If it is to uphold the Decision, the Court’s analysis must discern an articulated, rational connection between the facts found and the legal conclusions the FLRA made, Midwater Trawlers v. Dept. of Commerce, 282 F.3d 710, 716 (9th Cir. 2003), but without stepping outside the FLRA’s stated basis for its ruling.  Anaheim Memorial Hosp. v. Shalala, 130 F.3d 845, 849 (9th Cir. 1997).

31.             Although the FLRA’s interpretation of 5 U.S.C. 6191 et seq, is entitled to some deference, its decision must be overturned if arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.  Eisinger, 218 F.3d at 1100.  Moreover, FLRA decisions must be overturned if “inconsistent with a statutory  mandate or [they] frustrate the congressional policy underlying a statute.”  Id. at 1100-01.

32.             Under this standard, the FLRA exceeds its statutory power when it includes within a bargaining unit employees who, by statutory mandate, may not be included therein.  DOE, 880 F.2d at 1172 (holding that the FLRA erroneously combined supervisors and non-supervisors into a single unit without the mutual consent of the employees’ union and the agency in violation of 5 U.S.C. 7112(b)(1)).  Here, similarly, in violation of 5 U.S.C. 7112(b)(5), the FLRA combined professionals and non-professionals without consent of the former group by reclassifying the professionals as non-professionals. 

33.             The FLRA committed reversible error here because the Agriculture Specialists’ duties and functions did not materially change when they were transferred to CBP three years earlier and the FLRA has recognized their status as professional employees for the past 30 years.  The FLRA arbitrarily swept that longstanding record off the table by attempting to divorce itself from its own history of recognition by claiming it had never actually determined the employees were professionals.  61 FLRA at 493.  The record before the FLRA refutes this denial of precedence.

34.             The FLRA issued NAAE two separate Certificates in 1985.  One recognized NAAE as representing in one “appropriate unit” all PPQ Officers as “professional” employees and the other recognized NAAE as representing in a second “appropriate unit” all non-professional employees employed by USDA/APHIS.  See Exhibit F.  These Certificates replaced similar Certificates issued in 1976 to reflect a change in the union’s name.  Id.  The FLRA does not dispute this evidence, but tries to circumvent its consequences.  In an attempt to side-step the admittedly binding holding of NFFE, FD-1, IAMAW, Local 951 v. FLRA, 412 F.3d 119, 124 (D.C. Cir. 2005), which prohibits the FLRA from departing from its own precedent without rational explanation, the FLRA claims the 1976 and 1985 Certificates do not constitute precedent even though they recognize PPQ Officers as professional employees.  The FLRA theorizes there is no evidence the FLRA or its predecessor, the “A/SLMR,”[9] ever “determined” they were “professionals.”  61 FLRA at 493.  

35.             Categorizing the PPQ Officers as “professional” in a FLRA-issued Certificate constitutes in fact a “determination” because only the FLRA issues Certificates recognizing a described appropriate unit and only the FLRA makes appropriate unit determinations.  5 U.S.C.  7112(a).  The FLRA and the A/SLMR, did precisely that when they issued NAAE and its predecessor their Certificates authorizing representation of PPQ Officers in an appropriate unit of professional employees.  The FLRA simply cannot ignore the import of the Certificates.  See Dep’t of Army, HQ Fort Dix, supra, 53 FLRA at 293 (“certifications [25 years old] do not become stale over time if they continue to accurately describe the organization and employees within their scope.”); 5 CFR 2422.32(b) (grounds on which a certification may be revoked do not include age of certification).

36.             Multiplying the precedential effect of this prior FLRA determination are the 30 years of uninterrupted employer recognition and acceptance of the professional-employee status of Agriculture Specialists for unit representational purposes.  Relying upon the inapposite case of U.S. Dep’t of Transp., FAA, 60 FLRA 20, 24 (2004), which deems a past practice non-binding only if it is illegal, the FLRA dismisses the past practice of  USDA/APHIS’s recognition as not the equivalent of a “determination.”  61 FLRA at 493.  The employing agency’s unchallenged 30-year recognition may not be a “determination,” but it is nonetheless binding precedent, and the FLRA’s Decision does not even suggest the past recognition of PPQ Officers as “professional employees” was illegal in any way.

37.             Faced with this precedent, based upon 30 years of recognition, the FLRA was required to acknowledge that precedent, which it did not, and to offer a rational explanation for its decision to veer from it.  NFFE, FD-1, supra at 124; Local 32, AFGE, AFL-CIO v. FLRA, 774 F.2d 498, 502 (D.C. Cir. 1985).  It offered no such explanation, while at the same time accepting, or at least not disputing, NAAE’s contention, backed up with extensive references to the record, that the duties and qualifications of Agriculture Specialists have not materially changed since their transfer to CBP in March 2003. 

38.             Finally, although denying precedents recognizing Agriculture Specialists as “professional employees,” the FLRA erroneously endorses as precedent-setting the 1972 decision of the A/SLMR in U.S. Army Safeguard Logistics Command, Huntsville, AL, 2 A/SLMR 582 (1972), in which librarians were determined to be “non-professional employees.”  61 FLRA at 494.  The FLRA’s reliance upon the 1972 decision in U.S. Army Safeguard is misplaced.  In 1981, the FLRA abandoned its practice of classifying librarians as “non-professionals.”  Fort Knox Development School, 5 FLRA 33 (1981) (determining that school librarians were professional employees, not supervisors, for unit determination purposes).[10]  The FLRA’s failure to follow this more recent precedent is arbitrary, capricious, an abuse of discretion, and a violation of law.

F.      No Other Person Will Be Harmed By A Stay

39.             In this stay request, NAAE merely seeks to preserve the status quo as it has existed for the past 33 years and within CBP for the past three years.  No party or non-party has been injured by maintaining separate professional and non-professional units of USDA/APHIS and then CBP employees during that time span, and no party or non-party stands to be injured by maintaining the status quo pending the outcome of this appeal.  Moreover, during the entire election period, regardless of its duration, FLRA regulations require CBP, as the employer of the employees affected by the outcome of the election, to refrain from altering the terms and conditions of each employee’s employment as set forth in their respective collective bargaining agreements.  5 CFR  2422.34(a).  

G.      A Stay Is In The Public’s Interest

40.             Federal labor relations policy holds that employees have a right to collectively bargain with the bargaining representative of their choosing.  Department of Veterans Affairs Medical Center v. FLRA, 16 F.3d 1526, 1529 (9th Cir. 1994).  Once that representative is chosen, there is a continuing presumption of majority support for that representative.  5 U.S.C. 7111. 

41.             A stay will prevent the FLRA from effectively discharging NAAE as the professional employees’ representative without the employees’ consent.  Once NAAE is dispatched, it will be impossible for the 847 Agriculture Specialists to generate the requisite support among the leadership of NTEU or AFGE, or among the 20,000 workers into whose bargaining unit the Agriculture Specialists will have been placed, to maintain a controlling voice on employment issues that NAAE has advocated on their behalf for the past 33 years.  This dilution of the Agriculture Specialists’ legitimate interests and their loss of the ability to choose for themselves whether to be joined with non-professional employees are exactly the outcomes Congress attempted to prevent in separating professionals from non-professionals.

42.             A stay also serves the public interest because an election risks wasting significant government and union resources.  If an election is held and this Court later confirms the long-recognized professional status of Agriculture Specialists, the FLRA would be forced to conduct a second election, assuming a lawful means exists to sever the Agriculture Specialists and the other professional employees in CBP from the remainder of the CBP’s non-Border Patrol non-professional employees.  Moreover, in a close election, the 847 Agriculture Specialists’ votes could tip the scales and dictate the outcome, Randall Decl. 23, thus “tainting” and forcing another election if NAAE eventually prevails on the merits.  Under such circumstances, therefore, a stay is in the public interest.

H.      Prayer For Relief

WHEREFORE, NAAE respectfully requests this Court to stay enforcement of the Decision pending review on the merits by this Court and for all other necessary and proper relief.

                                                                   Respectfully submitted,

                                                                   _________________________

                                                                   Kim D. Mann

                                                                   _________________________

                                                                   Kathleen C. Jeffries

                                                                   Attorneys for

                                                                   National Association of

                                                                   Agriculture Employees

h:\users\bleive\documents\ajf\naae\stay motion.doc



[1] The other transferred APHIS/PPQ employees – approximately 285 workers now known as Agriculture Technicians –  have also been represented by NAAE, but in a separate unit of non-professionals. 

[2] These unions are the National Treasury Employees Union (“NTEU”), representing the former U.S. Customs employees of CBP, and the American Federation of Government Employees (“AFGE”), representing the former Immigration and  Naturalization Service employees of CBP.

[3] The FLRA made no such finding of continued “professional employee” status of the other 450 “professional” employees in CBP who the other two federal unions represent and who the FLRA will, because it must, permit to determine for  themselves whether to remain separated from the 20,000 non-professional employees of CBP.

[4] See, Columbia Power Trades Council v. U. S. Dep't of Energy, 671 F.2d 325, 326-27 (9th Cir. 1982) (legislative history of the CSRA makes clear that Congress intended the act to fill the identical role in the public sector as is filled by the NLRA in the private sector).  See also, 1978 U.S.C.C.A.N. 2860, 2887 (judicial review provisions of the CSRA mirror those found in the NLRA).

[5] Although NAAE does not allege in its Petition For Review that the misclassification of Agriculture Specialists constitutes an unfair labor practice (“ULP”) under 5 U.S.C. 7116, filing ULP charges, which must be filed with and adjudicated by the FLRA, would be an exercise in futility.  Moreover, the Court could not remedy an improperly denied ULP decision by the FLRA until long after the harm had been done.  See U.S. Dep’t of Energy v. FLRA, 880 F.2d 1163, 1164-65, n.3 (“DOE”).

[6] The attached declarations of NAAE’s National President, Michael Randall, and its CBP National Vice President, Alejandra Scaffa (“Scaffa Decl.”) (attached as Exhibit E), describe the irreparable harm NAAE and the bargaining unit members it represents will suffer if the Court does not enter a stay.

[7] This citation is to the record of the hearings before FLRA.  This hearing exhibit is attached as Exhibit F for the convenience of the Court.

[8] The actual bargaining unit in APHIS/PPQ that NAAE currently represents is approximately 1,200 employees.  Randall Decl. 2, 6. 

[9] The “A/SLMR” or “Assistant Secretary of Labor for Labor-Management Relations” generally functioned as the FLRA under a series of Executive Orders until enactment of the CSRA in 1978.  See 61 FLRA at 494.

[10] See also Panama Canal Commission and AFGE, Local 1805, 5 FLRA 104, n.6 (1981); West Point Elementary School, U.S. Military Academy, West Point, NY, 6 FLRA 70 (1981).