No. 06-71671

 
 

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 
 

NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES,

Petitioner,

v.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent.

On Petition For Review of Decision of the Federal Labor Relations Authority

Denying Application For Review

OPENING BRIEF FOR PETITIONER

                                      KIM D. MANN

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

                                      1850 M Street N.W., Suite 280

                                      Washington, DC 20036-5804

                                      Telephone:  (202) 551-9025

                                      KATHLEEN C. JEFFRIES

                                      SCOPELITIS, GARVIN, LIGHT & HANSON, LLP

                                      790 E. Colorado Blvd., 9th Floor

                                      Pasadena, CA 91101

                                      Telephone:  (626) 795-4700

                                      Counsel for Petitioner

TABLE OF CONTENTS

TABLE OF CONTENTS  ...................................................................................  i

TABLE OF AUTHORITIES ............................................................................... ii

STATEMENT OF JURISDICTION ....................................................................  1

STATEMENT OF THE ISSUES .........................................................................  2

STATEMENT OF THE CASE ............................................................................  2

STATEMENT OF THE FACTS .........................................................................  5

          A.      Framework of Representation Under the Statute ................................  5

          B.      The Facts Before the FLRA ..............................................................  6

          C.      The FLRA Decision ......................................................................... 14

SUMMARY OF ARGUMENT ............................................................................ 16

ARGUMENT ...................................................................................................... 17

          A.      Standard of Review .......................................................................... 17

          B.      Nature of Issue Before the Court ....................................................... 19

          C.      Conflicting Precedent Ignored ........................................................... 20

          D.      The FLRA Determination Conflicts With the Statute and the Record Evidence         22.........................................................................................................

CONCLUSION ................................................................................................... 30

STATEMENT OF RELATED CASES ................................................................ 30

STATUTORY AND REGULATORY ADDENDUM

TABLE OF AUTHORITIES

Cases

Acosta v. Gonzalez, 439 F.3d 550 (9th Cir. 2006) .................................................. 20

American Fed’n of Gov’t Employees v. FLRA, 446 F.3d 162 (D.C. Cir. May 5, 2006)       18

American Fed’n of Gov’t Employees v. FLRA, 794 F.2d 1013 (5th Cir. 1986) ........ 18

Barnette v. Ridge, 2004 WL 3257071 (Nov. 15, 2004) ..........................................   7

Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) .............. 18

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ....... 20

NLRB v. Security Guard Services, Inc., 284 F.2d 143 (5th Cir. 1967) .................... 27

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ..................................................... 17

Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) ............................... 18

Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins Co., 463 U.S. 29 (1983) 18     

Nat’l Fed’n of Fed. Employees, FD-1, IAMAW Local 951 v. FLRA, 412 F.3d 119 (D.C. Cir. 2005)           16

NTEU v. Chertoff, 385 F.Supp.2d 1 (D. D.C. 2005) .............................................   7

NTEU v. FLRA, 404 F.3d 454 (9th Cir. 2005) .................................................... 19

Sierra Club v. EPA, 346 F.3d 955 (9th Cir. 2003) ...........................................  17, 18

Administrative Decisions

Broadhead Garrett Co. and Unified Brotherhood of Carpenters and Joiners of America,  96 NLRB 669 (1951) ................................................................................................ 27

Dep’t of Army, HQ Fort Dix, Fort Dix, NJ, 53 FLRA 287 (1997) ..................... 16, 21

Fort Knox Dev. Sch., 5 FLRA 33 (1981) ......................................................... 17, 25

Group Health Ass’n, 317 NLRB 238 (1995) .................................................... 26, 28

Highway Incorporated, 223 NLRB 646 (1976) ..................................................... 27

International Fed’n of Prof. and Tech. Engineers, Local 25, 13 FLRA 433 (1983)          27

Panama Canal Commission and AFGE Local 1805, 5 FLRA 104 (1981) ............ 25

Patent Office Prof. Ass’n and Patent and Trademark Office, 25 FLRA 384 (1987)          27

U.S. Army Safeguard Logistics Command, Huntsville, AL, 2 A/SLMR 582 (1972) .........

............................................................................................................. 4, 15, 25, 29    

Utah Power & Light Co., 258 NLRB 1059 (1981) ................................................ 16

West Point Elementary School, U.S. Military Academy, West Point, NY, 6 FLRA 70 (1981)       25

Statutes

5 C.F.R. § 2422.32(b) .......................................................................................... 22

5 U.S.C. § 706 ......................................................................................... 17, 20, 22

5 U.S.C. § 7101(a) ...............................................................................................   5

5 U.S.C. § 7102 ...................................................................................................   5

5 U.S.C. § 7103(a)(4) ..........................................................................................   5

5 U.S.C. § 7103(a)(15) .................................................................. 2, 4, 6, 14, 16, 19

5 U.S.C. 7103(a)(15)(A)(iii) ...................................................................... 20, 23, 26

5 U.S.C. § 7105(e)(1) ..........................................................................................   3

5 U.S.C. § 7111(a) ...............................................................................................   5

5 U.S.C. § 7111(b) ......................................................................................... 2, 3, 5

5 U.S.C. § 7111(d) ..................................................................................... 1, 2, 5, 19

5 U.S.C. § 7112 ............................................................................................ 1, 2, 19

5 U.S.C. § 7112(a) ........................................................................................... 5, 21

5 U.S.C. § 7112(b) ..............................................................................................   6

5 U.S.C. § 7112(b)(5) ............................................................................ 6, 16, 19, 20

5 U.S.C. § 7123 ................................................................................................... 18

5 U.S.C. § 7123(a) ........................................................................................ 1, 2, 19

5 U.S.C. § 7123(c) .......................................................................................... 17, 22

29 U.S.C. § 152(12) ............................................................................................. 26

29 U.S.C. § 159(b) .............................................................................................. 26

Miscellaneous

Homeland Security Act of 2002, Pub. L. No. 107, 116 Stat. 2135 (Nov. 25, 2002) . 6, 8

No. 06-71671

________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_________________________________________________

NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES

Petitioner,

v.

FEDERAL LABOR RELATIONS AUTHORITY

Respondent.

OPENING BRIEF FOR PETITIONER

STATEMENT OF JURISDICTION

The Federal Labor Relations Authority (the “FLRA”) had jurisdiction under 5 U.S.C. § 7111(d) to decide the eligibility of employees to vote in any election held to select the exclusive representative of an appropriate unit within a federal agency.  This Court has subject matter jurisdiction pursuant to 5 U.S.C. § 7123(a) to review a final order of the FLRA, except, as pertinent, an order under 5 U.S.C. § 7112  involving an appropriate-unit determination.  The Petition for Review of the FLRA’s order of February 3, 2006 was filed April 3, 2006, less than 60 days after issuance of the FLRA order.  The Petition is, therefore, timely filed under 5 U.S.C. § 7123(a). 

On May 8, 2006, this Court denied the motion of the FLRA to dismiss this Petition for Review for lack of jurisdiction.  The motion claims the FLRA’s order of February 3, 2006 involved an appropriate-unit determination issued under 5 U.S.C. § 7112.  Denial was “without prejudice to renewing the arguments in the answering brief.”

STATEMENT OF THE ISSUES

Did the FLRA commit reversible legal error when, in holding that Agriculture Specialists employed by the Bureau of Customs and Border Protection (“CBP”) are no longer “professional employees” within the meaning of 5 U.S.C. § 7103(a)(15), it failed to follow its own precedent, ignored the statutory definition of “professional employees,” relied upon abandoned precedent, and adopted findings lacking record support? 

STATEMENT OF THE CASE

This case arises under the Federal Service Labor-Management Relations Statute (“the Statute”), Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1192.  5 U.S.C. §§ 7111(d) et seq.  In response to CBP’s representation petition filed with the FLRA pursuant to 5 U.S.C. § 7111(b), requesting a unit clarification that would, if granted, designate all non-Border Patrol employees of CBP as a single bargaining unit,[1]/ Petitioner, the National Association of Agriculture Employees (“NAAE”), countered with its own unit-clarification petition.  NAAE, a small federal-sector union, petitioned FLRA to determine that the two units of employees NAAE had represented for the past 30 years, a unit of professional CBP Agriculture Specialists and a unit of non-professional CBP Agriculture Technicians, were separate appropriate bargaining units within CBP.[2]/  CBP opposed NAAE’s petition and its requested separate Agriculture units.

Pursuant to 5 U.S.C. § 7111(b) and a delegation of authority under 5 U.S.C. § 7105(e)(1), a Regional Director (“RD”) of the FLRA held a consolidated hearing on the competing petitions of CBP and NAAE.

On the eve of the FLRA hearing, CBP announced the expansion of its opposition to the NAAE petition: it would be contending for the first time that Agriculture Specialists are no longer “professional employees” within the meaning of 5 U.S.C. § 7103(a)(15) and, therefore, must be included as non-professional employees within its own requested single unit of CBP employees.

After the hearing, the RD issued its Order, concluding that (1) CBP’s petition for a single, “wall-to-wall” unit within CBP should be granted, (2) NAAE’s petition for two separate Agriculture units within CBP should be denied and dismissed, and (3) NAAE’s Agriculture Specialists are no longer “professional employees.”  Excerpts Record at 176-78.  The RD ordered an election to select the union to represent the single appropriate unit of CBP employees.

NAAE filed a timely Application with the FLRA for Review of the Order (“Review Application”), excepting to all three rulings of the RD.  In its Decision Denying Application for Review dated February 3, 2006 and published at 61 FLRA 485 (2006) (“Decision”), the FLRA affirms the RD’s Order.  Excerpts Record at 198.  The FLRA concludes that no precedent exists recognizing Agriculture Specialists as “professional employees” because the FLRA has never determined they were professional.  The FLRA also concludes, as had the RD, that the work of Agriculture Specialists is comparable to the work of librarians found in the precedent-setting 1972 decision, U.S. Army Safeguard Logistics Command, Huntsville, AL, 2 A/SLMR 582 (1972) (“U.S. Army Safeguard”), to be that of “non-professional employees.”  NAAE here challenges the FLRA’s Decision only to the extent it finds Agriculture Specialists are “non-professional employees.”

STATEMENT OF THE FACTS

A.               Framework of Representation Under the Statute

Congress gives federal employees the right under the Statute to participate, through labor organizations of their own choosing, in agency decisions affecting them with respect to their grievances and conditions of employment.  5 U.S.C. §§ 7101(a), 7102, 7103(a)(4).  Accordingly, every federal agency must “accord exclusive recognition to a labor organization if the organization has been selected as the representative, in a secret ballot election, by a majority of the employees in an appropriate unit who cast valid ballots in the election.”  5 U.S.C. § 7111(a).  The Statute directs the FLRA to investigate and hold hearings on any representation petition and to supervise, conduct, and certify the results of any election.  5 U.S.C. § 7111(b).  The FLRA also determines employee eligibility to vote in elections and establishes rules governing elections.  These rules must allow eligible employees to determine, by majority vote, whether they wish union representation and, if so, which of the unions listed on the ballot they wish to have represent them.  5 U.S.C. § 7111(d). 

Because only employees in an appropriate unit may select their exclusive representative, the Statute directs the FLRA to determine the appropriateness of any proposed unit based upon specified criteria.  5 U.S.C. § 7112(a).  The Statute decrees that seven defined categories of employees, with one exception, shall not be included in any “appropriate unit,” irrespective of the wishes of those employees or of the FLRA.  5 U.S.C. § 7112(b).  The one exception, the exception at issue here, is the “professional employee.”  The Statute expressly states the FLRA may not assign “professional employees” to an appropriate unit that includes “non-professional employees” unless “a majority of the professional employees vote[s] for inclusion in the unit.”  5 U.S.C. § 7112(b)(5). 

As pertinent here, the Statute defines “professional employee” as follows:

(A)   an employee engaged in the performance of work ―

(i)             requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning . . . (as distinguished from knowledge acquired by a general academic education, or from an apprenticeship, or from training in the performance of routine mental, manual, mechanical, or physical activities);

(ii)           requiring the consistent exercise of discretion and judgment in its performance;

(iii)         which is predominantly intellectual and varied in character (as distinguished from routine mental, manual, mechanical, or physical work); and

(iv)         which is of such character that the output produced or the result accomplished by such work cannot be standardized in relation to a given period of time. . . .

5 U.S.C. § 7103(a)(15).

B.               The Facts Before the FLRA

Effective March 3, 2003, pursuant to the Homeland Security Act of 2002 (“HSA”), Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002) (codified as amended at 6 U.S.C. §§ 101 et seq. (2005)), Congress transferred functions of 22 federal agencies, along with approximately 170,000 federal employees, to the newly created Department of Homeland Security (“DHS”).  NTEU v. Chertoff, 385 F.Supp.2d 1, 6-7, n.1 (D. D.C. 2005).  CBP became an agency within DHS in March 2003.  Formerly known as the U.S. Customs Service, CBP is comprised of legacy elements of Customs, INS, and the U.S. Department of Agriculture (“USDA”).  Barnette v. Ridge, 2004 WL 3257071 at *2 (Nov. 15, 2004).  Approximately 20,340 legacy Customs, INS, and USDA bargaining-unit eligible employees, plus 9,200 Border Patrol agents, comprise the CBP workforce, including approximately 1,500 Agriculture Specialists and 350 Agriculture Technicians.  Excerpts Record at 139-41, 145-46, 158, 163. 

Prior to transferring to CBP in March 2003, these Agriculture Specialists and Agriculture Technicians were employees of Animal and Plant Health Inspection Service (“APHIS”), an agency within USDA, and carried job titles of “Plant Protection and Quarantine (“PPQ”) Officer” and “PPQ Technician,” respectively.  Excerpts Record at 157, 163.  Their primary mission at USDA/APHIS was to protect American agriculture, preventing the introduction of animal and plant pests and diseases into the United States from foreign countries.  They inspected foreign-arriving passengers, baggage, and cargo at land, sea, and air ports of entry, searching for prohibited or contaminated animal and plant items.  Congress in the HSA transferred their agriculture quarantine-and-inspection (“AQI”) functions to DHS concurrently with USDA’s transfer of the 1,850 PPQ Officers and Technicians to CBP.  Despite new job titles, CBP assigned the Agriculture Specialists essentially the same AQI functions they had performed as PPQ Officers, and they continue to perform those same functions in order to pursue the same protect-American agriculture mission, described in the HSA as one of the primary missions of the new DHS.  HSA, § 101(a)(1)(D) and (E); Excerpts Record at 3, 6-7, 24, 50-51, 56-58, 157-58.  Indeed, according to the RD’s own findings, a CBP management-level work group “created the position of Agriculture Specialists to preserve the duties performed by PPQ Officers at CBP.”  (Emphasis added.)  Excerpts Record at 5, 157.

NAAE has served as the elected exclusive representative of PPQ Officers and subsequently PPQ Technicians since 1976 pursuant to Certificates of Recognition (“Certificates”) issued and amended by the FLRA.  Excerpts Record at 115-32.  One Certificate recognizes NAAE as representing an “appropriate unit” of “professional” employees consisting of all PPQ Officers, and the other Certificate recognizes NAAE as representing in a second “appropriate unit” all non-professional employees employed by USDA/APHIS. Id. When the PPQ Officers and Technicians were transferred from USDA/APHIS to CBP on March 1, 2003, NAAE continued to represent them pursuant to the same two FLRA Certificates.  This representation continues uninterrupted to the present date.

The FLRA’s ruling on the status of Agriculture Specialists turns on the role of USDA-prepared manuals in the performance of the transferred AQI functions.  Agriculture Specialists, following the transition to CBP, continue to use USDA manuals as an aid or tool in the process of inspecting (i.e., “clearing”) foreign-arriving passengers, baggage, and cargo for agriculture purposes.  The USDA manuals list only what items or commodities legally may enter the stream of commerce in the United States; however, before allowing enterable items to enter, the Agriculture Specialist must be certain through inspection that these items are free of insects, pests, and disease or, if they are not, that the detected contaminant is not “actionable,” i.e., not harmful to U.S. agriculture, a determination sometimes requiring confirmation from a USDA Identifier.

Even before the Agriculture Specialist uses the USDA manuals to ascertain or verify enterability, he or she must be able accurately to identify the commodity discovered in the passenger baggage or manifested in the cargo container.  This is a complex task in many instances.  For example, at JFK International Airport, Agriculture Specialists use two guides, not distributed by CBP or USDA, listing 49 varieties of citrus fruit and 147 varieties of grasses that may or may not be enterable into the United States, depending upon country of origin.  Excerpts Record at 68-73, 96-105.  The Agriculture Specialist must be able to identify and differentiate between and among these fruits and grasses.[3]/  Id.  Identification requires the Agriculture Specialist to exercise independent judgment, based upon the employee’s educational background, experience, and training in the biological sciences.  Excerpts Record at 70, 84-85.  Neither the USDA manuals nor these guides listing citrus fruit, grasses, and similar products are of any help in the identification process.  Id. 

After identifying the foreign commodity or item, the Agriculture Specialist’s next task may or may not prompt him or her to consult the USDA manuals on enterability, depending upon the depth of the Specialist’s knowledge about and experience with the identified commodity.  Excerpts Record at 41.  The Agriculture Specialist’s decision on enterability triggers a series of subsequent judgment- and discretion-based decisions and steps in the AQI process: if not enterable, i.e., prohibited, the item nevertheless may, under certain circumstances, be let in,[4]/ or the Agriculture Specialist may seize and eventually destroy the item; in the cargo environment, the Specialist may give the broker or importer the additional option of re-exporting the prohibited commodity; and the Specialist may or may not issue the “guilty” broker or passenger a civil fine or penalty for the discovered violation of law, depending upon the circumstances.  Whether to do so and the amount of the fine is left to the judgment and discretion of the individual Agriculture Specialist.  Excerpts Record at 1-2, 15.  The manuals are of no help in this decision-making, and prior approval of a supervisor is not required.  Excerpts Record at 11-12, 15.

If the Agriculture Specialist determines the imported cargo is enterable, he or she must decide how to inspect it, a decision requiring the Specialist to apply his or her intellect, discretion, and independent judgment.  The manuals fix a minimum percentage of an imported shipment’s boxes, containers, etc. for inspection, but the Agriculture Specialist must decide whether, under the circumstances known to the Specialist, a greater percentage or even all of those boxes or containers should be opened and their contents inspected.  This “how to” and “how many” determination is not a manual-based decision.  It requires application of the Agriculture Specialist’s science-based education, experience, and training.  It involves an agriculture pest/disease risk analysis in the context of the Specialist’s knowledge of the country of origin, the time of the year, the history of the importer/broker, and the level of danger the potential pest, disease, or contaminant presents to U.S. agriculture, among other factors.  It also depends upon whether the Agriculture Specialist is looking for smuggled goods, mismanifested commodities, or merely insects, disease, or other contaminants.  Excerpts Record at 14, 16-17, 21-22, 39-40, 49, 63, 86-88, 90-91. 

When clearing passengers and baggage, the Agriculture Specialists constantly exercises judgment and discretion in determining which bags to X-ray or open and search.  This judgment requires application of a number of risk-assessment techniques -- interviewing passengers, reviewing their declarations, observing their conduct and types of bags they carry, assessing their country of origin, etc.  Excerpts Record at 1-2, 25-26.  Agriculture Specialists have only about 45 seconds to make these X-ray-and-search decisions in passenger secondary clearance.  Excerpts Record at 8-9.

If the Agriculture Specialist discovers a potential contaminant -- an insect, a weed seed, dirt, sand, or disease -- on an enterable commodity, he or she must make a determination on the spot, in the field, as to whether that contaminant is actionable.  Excerpts Record at 18-19.  This in turn requires the Agriculture Specialist to apply his or her scientific background, training, and experience to identify the contaminant, at least down to the order and family.  If this identification leads the Agriculture Specialist to conclude the pest, disease, or contaminant is not actionable, the Specialist “releases” the commodity into the stream of commerce, a critical decision with potentially severe economic repercussions.  Excerpts Record at 18-19, 30-32, 36-37, 55, 66-67, 80-82, 89.  On-the-job pest and disease identifications in the field occur routinely.  Excerpts Record at 80.  As every Agriculture Specialist witness confirmed, the manuals are no help in this identification process.  See, e.g., Excerpts Record at 62, 66.

If the Agriculture Specialist is unable to identify the insect or pest or, upon identification, concludes it is or may be actionable, the Specialist holds the shipment, seizes the commodity from the passenger, and refers the insect or pest to PPQ Pest Identifier in USDA for positive identification and final determination as to actionability.  Excerpts Record at 19, 33, 37, 53-54, 59-61.  Even if found actionable, the Agriculture Specialist decides, based upon his or her education, training, and experience (and not upon anything in the manuals), whether the actionable pest or disease is treatable, by fumigation or otherwise.  If it is not, the options the Agriculture Specialist gives the importer are limited to destruction or re-exportation.  Excerpts Record at 47-48, 83-84.

The manuals are mere tools or guidelines.  Excerpts Record at 13, 52-53.  They often have gaps, gray areas, ambiguities, and inconsistencies.  The Agriculture Specialist must use his or her own educational background, experience, and training to interpret the manuals, fill in the gaps, and effectively use and apply the information found in the manuals.  Excerpts Record at 23, 32, 38, 42-46, 64-65.  The manuals, even to the extent they clearly list a commodity as enterable, are often and routinely erroneous.  Agriculture Specialists must be alert to detect these errors, relying upon their education, experience, and training.  Excerpts Record at 13-14, 23, 74-79, 106-14.  As the manuals themselves point out, “Rely upon your practical experience and professional judgment, then take the following steps. . . .”  (Emphasis added.)  Excerpts Record at 65, 92-95.

C.               The FLRA Decision

On February 3, 2006, the FLRA issued its Decision denying NAAE’s Review Application.  The Decision affirms and adopts the RD’s conclusion that CBP Agriculture Specialists are not “professional employees” within the meaning of the Statute, 5 U.S.C. § 7103(a)(15).  Excerpts Record at 208-12.[5]/ 

NAAE’s Review Application argued that the FLRA is bound to follow its own precedent recognizing Agriculture Specialists as “professional employees” unless, after acknowledging this precedent, it provides reasoned explanation for deviating from it.  Excerpts Record at 184-85.  Despite accepting the legal proposition inherent in NAAE’s argument, the FLRA rejects the applicability of this principle here because, according to the FLRA, no such precedent exists; it claims the FLRA has never determined that PPQ Officers or their successor Agriculture Specialists are professional employees.  Excerpts Record at 209-10.

The FLRA also rejects NAAE’s argument that the RD Order misconstrued how Agriculture Specialists use the USDA manuals and thus incorrectly assessed “the amount of discretion they exercise.”  Excerpts Record at 210.  The FLRA concludes that employees other than Agriculture Specialists make the determinations that “require judgment and extensive educational background, the hallmark of professional employees.”  Id. 

The FLRA further affirms the RD’s reliance upon the 1972 case, U.S. Army Safeguard, supra, in finding the work of Agriculture Specialists analogous to that of librarians, found in U.S. Army Safeguard to be that of non-professional employees: both occupations, the FLRA claims, “are confined by very specific guidelines to which they must adhere.”  Id.

Regarding employee status, the FLRA concludes with a generalized finding: “We reach the conclusion that review of NAAE’s application is unwarranted because we find that (1) the record supports the RD’s factual findings, and (2) he properly applied existing precedent to those findings.”  Excepts Record at 210-12.  The FLRA identifies the alleged record-supported factual findings of the RD as: “[the Agriculture Specialists] did not exercise the requisite discretion and judgment and the work they performed was standardized, routine, and involved manual labor.”  Id.  The Decision summarizes but does not analyze NAAE’s arguments and record citations presented in its Review Application to demonstrate the RD’s errors in the very factual findings upon which the Decision relies.

SUMMARY OF ARGUMENT

          Congress provided professional employees an unfettered right to decide for themselves whether to be included in a bargaining unit along with non-professionals.  5 U.S.C. § 7112(b)(5).  Congress drew a detailed roadmap for the FLRA to follow in determining whether employees were professional employees under the Statute.  5 U.S.C. § 7103(a)(15).  The FLRA’s Decision ignores the roadmap and, in the process, frustrates the statutory scheme Congress designed to preserve the separate community of interest of professional employees.  See Utah Power & Light Co., 258 NLRB 1059, 1060 (1981).

          The FLRA ignores its own 30-year recognition of Agriculture Specialists as professional employees, simply disregarding its prior certifications.  By ignoring this precedent without providing a reasoned explanation, the FLRA commits reversible error.  Nat’l Fed’n of Fed. Employees, FD-1, IAMAW Local 951 v. FLRA, 412 F.3d 119, 121 (D.C. Cir. 2005) (“NFFE FD-1”); Dep’t of Army, HQ Fort Dix, Fort Dix, NJ, 53 FLRA 287, 293 (1997) (“Dep’t of Army”).

The FLRA Decision also ignores unambiguous key words and phrases in the statutory definition of “professional employee” in its zeal to characterize the work of Agriculture Specialists as “routine,” “standardized,” and “manual” and thus non-professional under the statutory definition.  The FLRA’s resulting statutory interpretation is arbitrary, capricious, and contrary to the law, and thus not entitled to judicial deference.  INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48 (1987).

          The FLRA’s wholesale adoption of the RD’s findings runs counter to the evidence in the record.  The finding that Agriculture Specialists simply rely upon manuals and hand off important decisionmaking to other experts, thereby exhibiting a lack of independent judgment, is contrary to a record replete with evidence depicting Agriculture Specialists regularly exercising discretion and independent judgment in the overall performance of their work.  Lacking substantial record support for its findings, the FLRA Decision should be reversed.  Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir. 2003). 

After equating the work of Agriculture Specialists to that of librarians, the FLRA erroneously relies upon 1976 “precedent” indicating librarians, and therefore, by analogy, Agriculture Specialists, are not professionals even though the FLRA itself overruled that precedent in 1981.  Fort Knox Dev. Sch., 5 FLRA 33 (1981). 

ARGUMENT

A.               Standard of Review

Review of the Decision must be on the record in accordance with 5 U.S.C. § 706.  5 U.S.C. § 7123(c).  Although such review requires deference to the FLRA, the Court may not simply “rubber stamp” the FLRA’s decision.  Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983) (“BATF”).  Rather, the Court must conduct an inquiry that, though narrow, is searching and careful.  Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989). 

The FLRA commits reversible error if its Decision is arbitrary and capricious, shows an abuse of discretion, or is otherwise not in accordance with the law.  BATF, 464 U.S. at 97, n.7.  If the Decision lacks the support of substantial evidence on the record, it must be overturned.  See American Fed’n of Gov’t Employees v. FLRA, 446 F.3d 162, 166-67 (D.C. Cir. May 5, 2006) (“AFGE 2006”) (attributing a “substantial evidence” element to 5 U.S.C. §7123 and holding the FLRA violated the standard); American Fed’n of Gov’t Employees v. FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986).  See also, Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir. 2003) (agency violates the arbitrary and capricious standard when its explanation for the decision runs counter to the evidence before the agency)(citing Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).  If substantial evidence exists, the FLRA must nevertheless articulate a rational connection between the facts found and the result reached.  Sierra Club, 346 F.3d at 961.

Finally, the Court must overturn the Decision if it conflicts with existing FLRA precedent without adequate explanation.  NFFE FD-1,412 F.3d at 121; NTEU v. FLRA, 404 F.3d 454, 457-58 (9th Cir. 2005).  Under these standards, the FLRA committed reversible error in this case.

B.               Nature of Issue Before the Court

At the outset, it is important to recognize what is not at issue here.  NAAE acknowledges that FLRA appropriate-unit determina­tions pursuant to 5 U.S.C. § 7112 are not reviewable in this or any other court in light of the limitations in 5 U.S.C. § 7123(a).  Accordingly, the FLRA’s determination that all CBP employees, professional and non-professional, shall be placed in a single wall-to-wall bargaining unit is judicially unassailable under the Statute. 

However, Congress expressly grants a unique right of self-determination to a discrete subset of bargaining-unit employees, “professional employees,” after the FLRA determines they should be included in its “appropriate unit.” “Professional employees,” as defined in 5 U.S.C. § 7103(a)(15), have the unqualified unilateral right, by majority vote, to exclude themselves as a group from the FLRA-determined “appropriate unit” if that proposed unit includes non-professional employees.  5 U.S.C. § 7112(b)(5).  The FLRA, exercising its authority under § 7111(d), rules that Agriculture Specialists are not eligible to vote as “professional employees” in the ensuing election ordered to select the exclusive representative of the newly-created “appropriate unit” of CBP employees.  It is this ruling, revoking Agriculture Specialists’ 30-year status as “professional employees,” thus depriving them of their statutory right to opt out of the “appropriate CBP unit,” that is at issue in this proceeding.

The issue is one of pure statutory construction.  Congress could have delegated to the FLRA unfettered discretion to determine, as a matter of sound labor policy, who qualify as “professional employees” for purposes of exercising veto power over assignment to bargaining units with non-professional employees.  It did not.  Instead, Congress laid out a detailed roadmap, a nature-of-the-work oriented definition of “professional employee” in 5 U.S.C. § 7103(a)(15), to constrain and guide the FLRA’s eligibility determination.  Given this clear, explicit, detailed congressionally-supplied definition, no more than a reduced Chevron deference is owed to the FLRA’s interpretation of “professional employee” in implementing the election options of § 7112(b)(5).  See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); Acosta v. Gonzalez, 439 F.3d 550, 553 (9th Cir. 2006).

C.               Conflicting Precedent Ignored

When as here the FLRA departs from its own precedent without supplying a reasoned explanation and analysis, the FLRA’s interpretation of its statute is entitled to no deference and is arbitrary and capricious under the APA’s standard, 5 U.S.C. § 706.  See NFFE, FD-1, 412 F.3d at 121, 124, and cases cited therein.  The FLRA embraces this principle in its Decision, but seeks to sidestep its proscription, contending that, because it assertedly has not departed from precedent, it owes no reasoned analysis or explanation for reclassifying Agriculture Specialists as non-professionals despite having recognized them and their predecessors, PPQ Officers, as “professional employees” continuously for more than 30 years.  Its avoidance rests upon the theory that it has never actually determined the PPQ Officers were professional employees.

The record refutes the FLRA’s denial of precedent.  The FLRA issued NAAE two Certificates in 1985, including one recognizing NAAE as the exclusive representative of a unit of “professional employees,” PPQ Officers.  Excepts Record at 115-32.  The 1985 Certificates replace two similar Certificates issued in 1976 to reflect a change in the union’s name.  Categorizing the PPQ Officers as “professional” in an FLRA-issued Certificate constitutes in fact a “determination” because only the FLRA issues Certificates recognizing appropriate units and only the FLRA makes appropriate-unit determinations.  5 U.S.C. § 7112(a).  The FLRA and its predecessor, the Assistant Secretary of Labor for Labor-Management Relations (“A/SLMR”), did precisely that when they issued NAAE its Certificates authorizing representation of PPQ Officers in an appropriate unit of professional employees.  The FLRA simply cannot ignore the import of its own Certificates.  See Dep’t of Army, 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).

Having ignored and deviated from its own precedent without acknowledging that precedent, indeed having expressly disavowed its very existence, and without purporting to offer a reasoned explanation for its deviation, the FLRA’s Decision cannot stand.  The Court should vacate the Decision to the extent it rules Agriculture Specialists are no longer “professional employees.”

D.               The FLRA Determination Conflicts With the Statute and the Record Evidence

Assuming arguendo the FLRA did not deviate from its own precedent or did so with a reasoned explanation, the FLRA’s ruling on the employee status of Agriculture Specialists is nevertheless arbitrary, capricious, and contrary to law in violation of 5 U.S.C. § 706 and lacks substantial supporting evidence of record in violation of 5 U.S.C. § 7123(c).  It relies upon the RD’s generalized findings simply parroting the statutory criteria that Agriculture Specialists do not exercise the requisite amount of discretion and judgment and the work they perform is standardized, routine, manual, and thus analogous to that of librarians.  It unquestionably conflicts with both the statutory definition of “professional employee” and the evidence of record. 

The definition of “professional employee” assesses the nature of the employee’s work.  That work must meet four conjunctive criteria:  it must (i) require specialized educational training in the sciences; (ii) require consistent exercise of discretion and judgment; (iii) be predominately intellectual and varied; and (iv) produce results that “cannot be standardized in relation to a given period of time.”  5 U.S.C. § 7103(a)(15).  There is no dispute, and the FLRA so finds (Decision at 493), that the Agriculture Specialist’s position satisfies part (i) of the above criteria: nearly all encumbents have undergraduate degrees in agriculture or in one of the biological sciences, and many have graduate degrees.

The FLRA Decision rests on the claim that Agriculture Specialists fail to satisfy parts (ii), (iii), and (iv) of the statutory criteria.  Other than referencing their use of manuals, analogizing their work to that of librarians, and attributing to others (USDA Identifiers) key decision-making involving judgment and discretion, the FLRA Decision offers no explanation as to why Agriculture Specialists exercise insufficient discretion and judgment, their work is not predominately intellectual and varied, and their work product is standardized in relation to time.

Making no independent findings of its own, the FLRA Decision relies upon select RD findings (see Excerpts Record at 210-12): Agriculture Specialists exercise only limited independent judgment and discretion because, the RD asserts, the USDA manuals “significantly prescribe the protocol [the Specialist] must follow upon encountering an agriculture product” and, upon determining an item “is prohibited,” the Specialist must “hand off” his or her findings to a USDA Identifier, someone “with greater expertise, before important decisions can be made.”  Excerpts Record at 203.  These findings demonstrate a fundamental misunderstanding of what the record evidence shows as to how Agriculture Specialists use USDA manuals and what tasks they perform before and after a USDA Identifier confirms a pest, insect, or contaminant identification.

As described, supra at 9-12, Agriculture Specialists use manuals only as tools and guidelines, and only then to verify what agricultural commodities may legally enter the U.S., and to determine minimum inspection prerequisites.  To use the manuals, the Specialists must first call upon their own scientific education, training, and intellect and exercise independent judgment and discretion to identify the commodity and, after identification, if enterable (using the manual to verify enterability), to determine how to inspect the baggage or cargo for contaminants, identify any detected, and then determine whether the contaminant is “actionable.”  If not actionable, the Specialist allows the commodity to enter.  If the commodity is prohibited, i.e. not enterable, the Agriculture Specialist does not turn the item or “findings” over to a USDA identifier as the RD found.  Excerpts Record at 202-03.  The Specialist seizes the item and, using his or her judgment and discretion and without supervisory approval, gives the importer the appropriate options and, if warranted, assesses the appropriate penalty.  Manuals play no role in these post-commodity identification functions.

The RD and the FLRA unfairly and contrary to the record evidence denigrate the decision-making responsibilities of the Agriculture Specialist as described above, claiming the determinations a professional would make, requiring the exercise of judgment and educational background, are those the USDA Identifier makes, not the Agriculture Specialist.  While the decisions of the Identifier may indeed require professional judgment and expertise, what the Agriculture Specialist does both before “handing off” the detected, partially-identified contaminant to the Identifier and afterwards also requires exercising professional independent judgment and discretion and employing extensive scientific training and background.  They are not mutually exclusive roles, one professional and one not.

The FLRA cites no decisional authority as precedent or support for its conclusion, except for its analogy of the Specialist’s work to that of librarians, found to be that of a non-professional in U.S. Army Safeguard.  But that decision, decided in 1972 by the A/SLMR, is no longer precedent.  In 1981, the FLRA abandoned its practice of classifying librarians as “non-professionals.”  See Fort Knox, 5 FLRA at 33 (determining school librarians were professional employees, not supervisors, for unit determination purposes).[6]/  The FLRA’s failure to follow this more recent precedent is arbitrary, capricious, an abuse of discretion, and a violation of law.

The FLRA’s endorsement of the RD’s findings regarding the asserted “routine,” “mechanical,” “physical” and “manual” nature of the Agriculture Specialist’s work ignores the clear language of the part (iii) definition from which it extracted these pejorative adjectives.  Section 7103(a)(15)(A)(iii) requires the professional work to be “predominately intellectual and varied in character” as distinguished from “routine mental, manual, mechanical or physical” work.  The FLRA Decision ignores the adverb “predominately” and its grammatical function in modifying the contrasting-work characteristics when assessing the overall character of the disqualifying work.  The proper inquiry Congress directed the FLRA to make, and the one the NLRB made in its analysis of medical technologists in Group Health Ass’n, 317 NLRB 238 (1995),[7]/ is whether the work at issue is predominately mentally routine, predominantly manual or physical, or predominately mechanical.  Id. at 240-44.

Clearly, Congress did not intend sporadic or relatively infrequent non-professional duties to disqualify an otherwise qualified professional employee from the protection of the Statute.  Compare NLRB v. Security Guard Services, Inc., 284 F.2d 143, 149 (5th Cir. 1967).  The NLRB, in administering its comparable “professional employee” definition, recognizes that “predominately” is the statutory measure of the extent of the manual or physical labor or work necessary to disqualify an employee claimed to be “professional.”  See, e.g., Broadhead-Garrett Co. and Unified Brotherhood of Carpenters and Joiners of America, 96 NLRB 669, 671 (1951); Highway Incorporated, 223 NLRB 646, 648 (1976).  The FLRA Decision erroneously writes the qualifying adverb “predominately” out of the statute in its zeal to reclassify Agriculture Specialists as “non-professionals.”

The part (iv) criterion, a standardized product or result, has not been the subject of prior FLRA interpretation.  The words in the statute modifying “standardized,” “. . . in relation to a given period of time,” while not a model of clarity, imply the end result or product of the employee’s work, if non-professional, will be quantifiable, measured by a unit of time – detecting so many bugs every week, inspecting so many containers every shift, producing so many widgets every hour, for example.[8]/  There is absolutely no evidence to suggest the work of the Agriculture Specialists is “standardized” in that temporal or quantitative sense.  They have no quotas.  The FLRA’s interpretation here simply writes this qualifying phrase right out of the statutory definition. 

In applying the four work-related criteria of the NLRA statute to medical technologists, the NLRB in Group Health Ass’n concluded that the use of modern analytical tools ― “highly mechanized, automated, and more routine” lab tests ― did not detract from the constant exercise of discretion, independent judgment, and predominately intellectual work of medical technologists performed as part of their pre- and post-test procedures.  317 NLRB at 240-41.  The NLRB found these employees to be professional technologists, “not mere machine operators.”  Id.  It described the “pieces of automated testing equipment” as merely “tools” that “do not alleviate the need for judgment and discretion in the performance of that testing.”  Id.  With respect to the standardized work criteria, the NLRB found that:

[l]aboratory testing procedures, whether manual or automated, are not readily standardized because of the unique characteristics of each individual sample specimen, laboratory testing equipment, and medical technology. . . .  This variety of testing cannot readily be measured as a function of time.

317 NLRB at 242 (footnote omitted).

The NLRB observed that even though automation had increased in recent years, the “professional employee” criteria required “a close examination of the totality of the duties performed” and that the rigid mandatory routines and protocols and the performance of frequent routine and non-professional tasks attributable to the overall functions of the employee did not diminish the predominately intellectually nature of the work of the medical technologists or their need to exercise constant independent judgment and discretion.  Id. at 242-44.

The FLRA provides no comparable independent analysis of the work of Agriculture Specialists and cites no authority, other than the long-abandoned precedent of U.S. Army Safeguard, to support its adoption of the RD’s findings.  NAAE, in its Review Application, demonstrated in detail how the record evidence undercuts the RD’s findings as to the purported controlling role of the USDA manuals and Identifiers in the work of Agriculture Specialists.  Excerpts Record at 186-96.  The FLRA’s Decision offers no explanation as to why the cited testimony should be discredited or why it is unpersuasive.  Its failure to do so is arbitrary and capricious and leaves its explanation for concluding Agriculture Specialists are not professional employees to run counter to the evidence of record.  AFGE 2006, 446 F.3d at 166-67 (holding that “having neither discredited the testimony nor given reasons for finding it unpersuasive, the [FLRA] should not have discarded such evidence”).

CONCLUSION

          For the foregoing reasons, the Court should grant the Petition for Review, reverse the FLRA’s Decision to the extent the Decision refuses to recognize Agriculture Specialists as “professional employees,” and direct the FLRA to conduct an election in which Agriculture Specialists are allowed to decide as professional employees whether to remain a separate bargaining unit from the non-professional unit determined by the FLRA.

                                                                   Respectfully submitted,

                                                                   ______________________________

                                                                   Kim D. Mann

                                                                   Kathleen C. Jeffries

                                                                   Counsel for the National Association

                                                                   of Agriculture Employees

STATEMENT OF RELATED CASES

Counsel for Petitioner hereby certifies that they are aware of no related cases currently pending in this Court.

                                                                   ______________________________

                                                                   Kim D. Mann

                                                                   Kathleen C. Jeffries

h:\users\bleive\documents\ajf\naae\brief for the petitioner.doc



[1]/ All parties stipulated and the FLRA agreed that the 9,200 Border Patrol employee-agents of CBP constitute a separate appropriate unit within CBP.  See Decision and Order of the FLRA Regional Director (“Order”) at 13-14, contained in the Excerpts of Record (“Excerpts Record”) at 145-46.  Throughout this Brief, Border Patrol will be treated as a separate unit without further mention of this unit’s separate status.

[2]/ NAAE took no position as to whether the remainder of CBP, consisting of approximately 20,000 CBP Officers, former U.S. Customs (“Customs”) inspectors and former Immigration and Naturalization (“INS”) agents, collectively constituted another appropriate unit.

[3]/ Agriculture Specialist witnesses provided other examples of hard-to-identify commodities.  See, e.g., Excerpts Record at 27-28, 35-36.

[4]/ Even items not listed, thus theoretically not enterable, may be enterable if slightly altered physically.  See Excerpts Record at 29-31.

[5]/ The Decision also affirms and adopts the RD’s findings that the two Agriculture units NAAE represents, Specialists and Technicians, should not be recognized as separate appropriate units within CBP, thus affirming that the CBP’s workforce should be comprised of a single wall-to-wall unit.  Excerpts Record at 212-15.  This aspect of the Decision is not at issue here.

[6]/ 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).

[7]/ The NLRB decisions afford useful guidance in interpreting the definition of “professional employee” in an almost identical statutory context.  The NLRA’s provision for according professional employees self-determination rights and for defining “professional employee,” 29 U.S.C. §§ 152(12) and 159(b), are virtually identical to those found in the Statute, 5 U.S.C. §§ 7103(a)(15) and 7112(b).

[8]/ Two FLRA decisions suggest quantifiable work is the hallmark of “standardized” work: International Fed’n of Prof. and Tech. Engineers, Local 25, 13 FLRA 433, 434 (1983); Patent Office Prof. Ass’n and Patent and Trademark Office, 25 FLRA 384, 397-98 (1987).