National Association of Agriculture Employees v. Federal Labor Relations Authority ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL ASSOCIATION OF 
AGRICULTURE EMPLOYEES,
Petitioner,
v. No. 06-71671
FEDERAL LABOR RELATIONS
AUTHORITY,  FLRA No.
WA-RP-04-0067
Respondent, OPINION
and
CUSTOMS AND BORDER PROTECTION,
Intervenor.

On Petition for Review of an Order of the
Federal Labor Relations Authority
Argued and Submitted
October 16, 2006—Pasadena, California
Filed January 10, 2007
Before: John R. Gibson,* Raymond C. Fisher and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Fisher
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
191
194 NAT’L ASSOC. OF AGRI. v. FLRA
COUNSEL
Kim D. Mann (argued) and Kathleen C. Jeffries, Scopelitis,
Garvin, Light & Hanson, P.C., Washington, D.C., for peti-
tioner National Association of Agriculture Employees.
William R. Tobey and William E. Persina (argued), Washing-
ton, D.C., for respondent Federal Labor Relations Authority.
Peter D. Keisler, William Kanter and Howard S. Scher
(argued), Civil Division, U.S. Department of Justice, Wash-
ington, D.C., and Julie A. Murphy, Office of the Chief Coun-
sel, Bureau of Customs and Border Protection, for intervenor
Customs and Border Protection.
Gregory O’Duden, Elaine Kaplan, Larry J. Adkins and Robert
H. Shriver, III, Washington, D.C., for amicus National Trea-
sury Employees Union.
OPINION
FISHER, Circuit Judge:
We must decide whether a determination by the Federal
Labor Relations Authority (FLRA) that certain government
employees are professionals is an order involving an appropri-
ate collective bargaining unit determination. If it is, we lack
jurisdiction to review it under the Federal Service Labor-
NAT’L ASSOC. OF AGRI. v. FLRA 195
Management Relations Statute (FSLMRS), 5 U.S.C. §§ 7101
et seq.1
The National Association of Agriculture Employees
(NAAE) is a union that until recently represented federal agri-
cultural inspectors stationed at the nation’s borders and ports.
NAAE challenges the FLRA’s finding that the inspectors are
not “professional employees” under the FSLMRS and conse-
quently do not have the right to vote themselves into a
professionals-only collective bargaining unit. We hold that the
FLRA’s professional status finding in this case was a compo-
nent of an appropriate unit determination. Since § 7123(a)(2)
precludes review of such determinations, we dismiss for lack
of jurisdiction.
FACTUAL AND PROCEDURAL HISTORY
In November 2002, the President signed the Homeland
Security Act of 2002 (HSA), Pub. L. No. 107-296, 116 Stat.
2135, which restructured and combined several preexisting
executive branch agencies to form the new Department of
Homeland Security (DHS). One of the new bureaus within
DHS is Customs and Border Protection (CBP), which com-
bines elements of the former Customs Service, Immigration
and Naturalization Service, Border Control and the Depart-
ment of Agriculture’s Plant Protection and Quarantine (PPQ)
agency. Among the employees transferred into CBP are
approximately 1500 former PPQ officers responsible for pre-
venting the introduction into the United States of animal and
plant pests and diseases that could harm this country’s agri-
culture. PPQ officers inspect individuals, baggage and cargo
arriving from foreign countries at the nation’s borders, air-
ports and sea ports. After their reassignment to DHS, PPQ
officers retained nearly all of their former duties but received
the new job title “agriculture specialist.”
1
All statutory references herein are to Title 5 of the United States Code
unless otherwise specified.
196 NAT’L ASSOC. OF AGRI. v. FLRA
Before CBP’s creation, the employee groups from each of
its legacy agencies were divided into seven collective bargain-
ing units represented by five different unions. Among these
was a unit of professional agricultural employees comprised
of all PPQ specialists, and represented by NAAE. One year
after its formation CBP filed a clarification of unit petition
under § 7111(b) with the FLRA proposing a new bargaining
unit structure aimed at consolidating the units that were the
legacy of the old structure. CBP’s proposal included two
units: one consisting of border patrol employees and a second,
“wall-to-wall” unit consisting of all other CBP employees,
including agricultural specialists. Though the petition
requested just these two units, CBP later recognized that the
wall-to-wall unit might ultimately be split into separate pro-
fessional and nonprofessional employee units under the terms
of § 7112(b)(5). That provision prohibits the inclusion of pro-
fessionals and nonprofessionals in a single unit unless a
majority of professionals vote to join the nonprofessional unit.
NAAE opposed CBP’s proposed wall-to-wall unit insofar
as it included the employees NAAE represented. NAAE filed
a competing petition requesting a separate unit for agricultural
specialists, who the FLRA had for several years deemed to be
professionals.2 CBP opposed NAAE’s petition arguing that
NAAE’s suggested unit was not appropriate and that agricul-
ture specialists were not professional employees as defined by
the FSLMRS.
The FLRA referred the matter to a regional director to con-
duct a hearing. See 5 U.S.C. § 7105(e)(1). In a written deci-
sion, the regional director concluded that CBP’s proposed
units were appropriate, that NAAE’s proposed agricultural
employees units were not and that agricultural specialists are
2
NAAE also filed a second petition requesting an additional unit for
nonprofessional PPQ employees known as agricultural technicians, who
had been represented by NAAE and another union. The FLRA denied that
petition and NAAE does not challenge that determination here.
NAT’L ASSOC. OF AGRI. v. FLRA 197
not professionals. The regional director accordingly scheduled
an election for employees in the new CBP units to vote for a
union representative and for professional employees to vote
on whether they wanted to be included in the wall-to-wall unit
with nonprofessionals. NAAE appealed the decision to the
FLRA, which in a written opinion affirmed the regional direc-
tor on all relevant grounds. United States Dep’t of Homeland
Sec. Bureau of Customs and Border Protection, 61 F.L.R.A.
No. 92, 2006 WL 297220 (Feb. 3, 2006). NAAE then filed a
timely petition for review in this court pursuant to § 7123(a).
While its petition for review was pending, NAAE also
moved the FLRA to stay the election pending the appeal
before us. The FLRA denied the motion, concluding that
NAAE was unlikely to succeed on the merits of its appeal
because, among other reasons, this court lacks jurisdiction.
See Nat’l Ass’n of Agric. Employees, 61 F.L.R.A. No. 101,
2006 WL 1168858 (Apr. 18, 2006).
STANDARD OF REVIEW
We determine our own subject matter jurisdiction de novo.
See Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1221 (9th Cir.
2004). Although we typically defer to an agency’s interpreta-
tion of the statute it is charged with administering, see Her-
man v. Tidewater Pacific, Inc., 160 F.3d 1239, 1241 (9th Cir.
1998), agencies are generally considered to have no special
expertise in construing provisions involving the jurisdiction of
federal courts. See United States v. Corey, 232 F.3d 1166,
1183 (9th Cir. 2000). We therefore need not defer to the
FLRA’s conclusion that we lack jurisdiction.
DISCUSSION
[1] The FSLMRS grants federal circuit courts jurisdiction
to review final orders of the FLRA subject to two exceptions,
one of which is relevant here:
198 NAT’L ASSOC. OF AGRI. v. FLRA
(a) Any person aggrieved by any final order of the
Authority other than an order under—
...
(2) section 7112 of this title (involving an
appropriate unit determination),
may . . . institute an action for judicial review of the
Authority’s order in the United States court of
appeals in the circuit in which the person resides or
transacts business.
5 U.S.C. § 7123(a) (emphasis added). “The plain language of
the statute clearly states that we have jurisdiction over all final
orders from the FLRA, with one of the two exceptions being
orders issued under § 7112.” Eisinger v. FLRA, 218 F.3d
1097, 1101 (9th Cir. 2000). The FLRA argues that its order
in this case involved an appropriate unit determination and
thus we lack jurisdiction under § 7123(a)(2). We agree.
[2] To resolve whether the FLRA’s decision that agricul-
tural specialists are not professionals is an “order under . . .
section 7112 . . . (involving an appropriate unit determina-
tion),” we look first to the text of the statute. See Eisinger,
218 F.3d at 1102 (“[T]he plain meaning of the statute con-
trols, and courts will look no further, unless its application
leads to unreasonable or impracticable results.” (citation omit-
ted)). Section 7112 specifies two mandatory considerations
for determining unit appropriateness. First, under § 7112(a),
the FLRA is required to decide whether the proposed unit
ensures “a clear and identifiable community of interest” and
whether it “promote[s] effective dealings with, and efficiency
of the operations of the agency involved.” 5 U.S.C. § 7112(a);
see also Dept’t of the Navy, Navy Publ’ns and Printing Serv.
Branch Office, Vallejo, Cal., 10 F.L.R.A. 659, 660 (1982)
(“[I]n order to be found appropriate, a proposed unit must
meet all three of the . . . criteria.”). Second, under § 7112(b),
NAT’L ASSOC. OF AGRI. v. FLRA 199
the FLRA is absolutely prohibited from finding a unit appro-
priate if it includes certain classes of employees, such as man-
agers, confidential employees and intelligence officers; and
— relevant here — conditionally prohibited from combining
professional employees with nonprofessionals. 5 U.S.C.
§ 7112(b). Thus, in investigating unit appropriateness the
FLRA “not only applies the criteria for determining appropri-
ateness contained in section 7112(a)[ ] but also ensures that
the unit does not contain excluded categories of employees
identified in section 7112(b)(1)-7112(b)(7).” Eisinger, 218
F.3d at 1101-02 (quoting Robert T. Simmelkjaer, Representa-
tion and Election, in Federal Civil Service Law and Proce-
dures 213, 216 (Ellen M. Bussy ed., 1990)).
[3] With respect to professional employees, § 7112 speci-
fies that “[a] unit shall not be determined to be appropriate . . .
if it includes . . . both professional employees and other
employees, unless a majority of the professional employees
vote for inclusion in the unit.” 5 U.S.C. § 7112(b)(5). Profes-
sional employees are therefore presumptively members of
their own unit. That presumption is rebutted when the profes-
sionals vote to be included in a unit with nonprofessionals.
[4] The statute defines professional employees at
§ 7103(a)(15) by listing four conjunctive criteria: advanced
education, application of discretion, intellectual predominance
and nonstandardization. If the employee’s work meets all four
of the criteria, the employee is a professional. 5 U.S.C.
§ 7103(a)(15). This definition applies only to the FSLMRS,
see 5 U.S.C. § 7103(a), and the term is used only once in the
statute, in § 7112(b)(5).3 The FLRA has accordingly remarked
that “[t]he term [‘professional employee’] is relevant primar-
ily to the determination of appropriate bargaining units under
section 7112.” Int’l Fed. of Prof’l and Technical Eng’rs Local
3
The term does appear at several other places in the United States Code,
most notably in the National Labor Relations Act, see 29 U.S.C. §§ 159,
762, 783, which employs a similar definition. See 29 U.S.C. § 152.
200 NAT’L ASSOC. OF AGRI. v. FLRA
25, 13 F.L.R.A. 433, 438 (1983) (quoting H.R. Rep. No. 95-
1403, 95th Cong., 2d Sess. 41 (1978)).
[5] From this statutory scheme we conclude that when the
FLRA decides professional status it typically, if not always,
does so as a necessary and integral component of an appropri-
ate unit determination.4 Employing the language of unit
appropriateness, § 7112(b)(5) mandates that professional
employees not be joined with nonprofessionals in a single unit
without an opt-in vote. If professional status is contested in an
appropriate unit determination proceeding, the FLRA is
required by the statute to apply the four criteria listed in
§ 7103(a)(15) to resolve the dispute. Its failure to do so would
violate the statute by risking the joinder of professionals and
nonprofessionals. In such a case, the FLRA’s resolution of the
employee’s status is a required element of the appropriate unit
determination and thus part of an “order under . . . section
7112.” See 5 U.S.C. § 7123(a)(2).
[6] This is such a case. This dispute arose in response to
CBP’s request for unit clarification under § 7111. The pur-
pose of CBP’s petition was to obtain the FLRA’s approval of
a new bargaining unit structure for CBP employees. One ele-
ment of the new structure was the redesignation of agricul-
tural specialists as nonprofessionals, thereby negating any
need to give the specialists the opportunity to vote themselves
into the wall-to-wall bargaining unit in which CBP placed
them. When NAAE disputed the agricultural specialists’
change in status, the FLRA was required to apply the
4
NAAE cites several FLRA decisions in which NAAE contends the
FLRA decided professional status outside of an appropriate unit determi-
nation. See, e.g., Dep’t of the Army U.S. Army Corps of Eng’rs, Los Ange-
les Dist., 56 F.L.R.A. 973 (2000); U.S. Dep’t of Veterans Affairs, Med.
Ctr. Coatesville, PA, 56 F.L.R.A. 966 (2000). We need not determine
whether NAAE’s characterization of these decisions, which involve very
different circumstances, is correct. The only question before us is whether
an FLRA professional status finding in circumstances such as those pres-
ent here is part of an appropriate unit determination.
NAT’L ASSOC. OF AGRI. v. FLRA 201
§ 7103(a)(15) criteria. NAAE’s challenge was thus an attack
on the appropriateness of CBP’s proposed unit structure
because, if NAAE had been right, CBP’s unit would be, in the
language of the statute, “not . . . appropriate.” See 5 U.S.C.
§ 7112(b). By asking us to revisit and reverse the FLRA’s
professional status determination, NAAE asks us to do pre-
cisely what § 7123(a)(1) forbids: reverse the FLRA’s appro-
priate unit determination. We therefore lack jurisdiction.
NAAE argues that the FLRA’s professional status ruling
was not a component of its appropriate unit determination but
instead an adjudication regarding a special right to self deter-
mination granted by § 7112(b)(5) — the right of professionals
to cast a vote to determine for themselves which bargaining
unit to join. We agree that professionals’ ability to vote for
unit assignment is properly characterized as a right. See Lee-
dom v. Kyne, 358 U.S. 184, 189 (1958) (characterizing as a
“right” the voting privilege granted to a private sector profes-
sional employee under similar provisions of the NLRA).
However it is a right given only to professionals, and the ante-
cedent question of whether agricultural specialists are profes-
sionals was in this case a portion of the FLRA’s appropriate
unit determination. We lack jurisdiction to review that finding.5
We find similarly unavailing NAAE’s argument that we
have jurisdiction because CBP’s petition was brought under
§ 7111 rather than § 7112. “Ordinarily, the investigation of a
. . . petition under § 7111 results in an appropriate unit deter-
mination under § 7112.” Eisinger, 218 F.3d at 1102. In fact,
it is the “atypical case where a [clarification of unit] petition
5
If, however, it were beyond dispute that agricultural specialists are pro-
fessionals and the FLRA still denied them their right to vote, then NAAE
could challenge the FLRA’s denial in a federal district court under Lee-
dom. See Nat’l Treasury Employees Union v. FLRA, 112 F.3d 402, 406
(9th Cir. 1997) (per curiam) (“If the FLRA acts ‘in excess of its delegated
powers and contrary to a specific [statutory] prohibition,’ district courts
have jurisdiction[.]” (quoting Leedom, 358 U.S. at 188)). NAAE does not
contend that the Leedom doctrine applies here.
202 NAT’L ASSOC. OF AGRI. v. FLRA
filed under § 7111 does not implicate § 7112.” Id. This is not
the atypical case. Rather, CBP’s initial petition for unit clarifi-
cation asked the FLRA “to exercise its Authority under
§§ 7105(a)(2), 7111(b) and 7112 to determine the appropriate
bargaining units . . . within CBP.” (emphasis added). It is
undisputed that, in response to the petition, the FLRA made
an appropriate unit determination. It is therefore of no
moment that the petition was filed pursuant to § 7111. We
also reject NAAE’s claim that the FLRA’s ruling was made
under § 7103(a)(15), which defines “professional employee.”
Section 7112(b) incorporates the criteria listed in
§ 7103(a)(15). Thus when the FLRA applied those criteria in
this case it was doing so as a part of its appropriate unit deter-
mination.
[7] Accordingly, we hold that where, as here, the FLRA
makes an appropriate unit determination and in doing so adju-
dicates an employee’s professional status to satisfy itself that
the units selected are appropriate, we lack jurisdiction to
review that status finding.6
CONCLUSION
Section 7123(a)(2) precludes judicial review of the FLRA’s
decision in this case that agricultural specialists are nonpro-
fessionals. We therefore dismiss for lack of jurisdiction.
DISMISSED.
6
We do not reach whether the FLRA’s unit determination might be
reviewed indirectly through an appeal from an unfair labor practice
charge. See Ass’n of Civilian Technicians, Inc. v. FLRA, 283 F.3d 339,
342 (D.C. Cir. 2002); Twin City Hospital Corp. v. NLRB, 889 F.2d 1557,
1559 & n.2 (6th Cir. 1989) (stating in the context of parallel provisions of
the NLRA that a professional status determination was reviewable in this
manner).